Advisory Opinions - Inconsistent and Repugnant

Episode Date: November 30, 2023

On today’s episode, David and Sarah break down the most interesting Supreme Court argument of this term and what it means for the future of double jeopardy law. But first, they have to shout out the dating site that is the AO comment section. Also on the docket: -Mistrials vs. double jeopardy -Federal rights and state interpretations -The coolest word you've never used -David calls for thoughtful comments -How to lose with valor at SCOTUS -Fifth circuit on the brain -A second bite of the Rahimi apple -Revealing AO's next long-awaited guest Show notes: -SNL: Weights and Measures with Nate Bargatze -McElrath v. Georgia -Blockburger v. United States -Fifth Circuit and Rahimi Learn more about your ad choices. Visit megaphone.fm/adchoices

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Certain conditions apply. Details at phys.ca. You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. And David, for those who haven't been tuning in to the end of this podcast, we've had a few episodes about dating. And it appears that the AO comments section has become its own you know tinder eHarmony site I just want to highlight one such post stable interesting guy with a tiny freezer here looking for someone petite well done um so yeah if you've if you've been tuning out for the end of the podcast no problem no problem that is a good comment yeah um so today david we have

what i think was one of the more maybe the most interesting Supreme Court argument that we're going to have this term that's not one of the hit cases. Yeah. So we're going to talk a lot about that because there's so much to break down. And if you're sort of just into criminal law, like law and order, and you're wondering where the state of the law is right now, this was a fun one. And then we'll talk a little bit about that concurrence from Judge Ho down in the Fifth Circuit, that pushing that Rahimi Boulder up the hill, man. Yes. Oh, yeah. All right. But we'll start with the Supreme Court oral argument.

The case is Mickelrath versus Georgia. And, you know, disclosure, the oral advocate for Mickelrath is an attorney at Wiley Rhyme, which is where I summered. So I felt immediate, you know, love just pouring out for Wiley Rhyme. Congrats to the team over there. And in fact, emailed the advocate afterward to ask him some follow up questions on procedural stuff that we'll get to. He was very generous. You know, I'm sure. Let me just say, he seemed quite sober in answering my questions. I would not have been. A night after an argument and you're getting questions from a podcast host. No, thank you. Yeah. No, but that, you know, it could be that you're just,

you just want to, you're old. How old is he? Because there's a certain point in which you're not going to have a rager after a Supreme Court oral argument. He's that age. He's not raging. Okay. Okay. There you go. There you go. But David, you would be raging, right? Raging is a strong word. I mean, you're the age that I would say shouldn't be raging. Let's be clear. True. I would be out late for sure. That's you anyway. You're a night owl. Yes. Yeah. Oh, yeah. I would be out late for sure. Rel's you anyway. You're a night owl. Yeah. Oh, yeah. I would be out late for sure, reliving it, talking about it in agony over missed questions I would have answered, should have answered differently, but definitely not raging. So for Scott's first oral argument at the court, I remember I was waiting afterward

at a nearby Tex-Mex restaurant that is now gone. For those who've ever lived in D.C., Tortilla Coast is no more. Pour one out for your homies. But I was waiting there with tequila shots. So Scott has now argued, I guess, a dozen cases at the court. And you can there's like a spectrum like single people in their early 30s tequila shots through now married people with children, no more tequila shots. But there was a nice piece of fish last time after the Supreme Court argument. Oh, that's funny. Yeah, there is a whole Nate Bargatze bit.

I don't know if you've seen it about how you respond at different ages when someone is saying, let's go. And it's the difference between 20s, 30s and 40s. And he doesn't reach his 50s quite yet. But it's really very funny. And by the way, he's just hysterical. And if we have not talked, have we talked about the Weights and Measures Saturday Night Live skit? No, but it was one of the best skits of the last several years. It was unbelievable.

It was one of the best things I've ever... We need to put that in show notes, Adam, just for fun in case our listeners have not seen it. Yeah, it's the holiday season. Now we're just going to be having light, fun things. Speaking of light, fun things, Mickelrath was tried for having light, fun things. Speaking of light, fun things, Mickelrath was tried for not light, fun things.

Right. Killing his mother, not great. So here's what happens. The state of Georgia tries him for what amounts to first degree murder, like murder with intent, and felony murder. So he's found not guilty of that first degree malice murder by reason of insanity.

And then he's found guilty, but mentally ill of felony murder and aggravated assault. Well, you've got a problem here because the jury has now found that he's both insane and sane in the same episode. So McElrath then goes up through to the Georgia Supreme Court, arguing that these are not just inconsistent verdicts, but in Georgia,

they have something called repugnant verdicts. We'll get to maybe the distinction between those in a second. And the Georgia Supreme Court agrees and they vacate or void, that will also become sort of relevant here, both verdicts because they are so inconsistent as to be repugnant to one another, neither verdict can stand. That's what McElrath wants, right? Because while he was acquitted on the one, he was found guilty on the other and he would spend life in prison for being found guilty, but mentally ill, a felony murder. He doesn't want them both vacated. Well, he does, because that's how it's going to work. If you're going to get any vacated under the inconsistent repugnant theories, it has to be both. It has to be both. Right. Because

they knock each other out. OK, so everything's going exactly how Mickelrath wants. Both have been, again, vacated or voided, knocked each other out. So now they go back down and the district attorney's like, ugh, fine. And so they charge him again with both to move to trial. And now Mickelrath says, ah, ah, ah, I was acquitted of the one.

So actually you can't retry me for the malice murder, that first degree murder charge. And they're like, wait, what? No, no, no, no. We just knocked out both verdicts. It's like the verdicts never happened. So we just start over and he goes, double jeopardy. So this goes back up to the Georgia Supreme Court

a second time. This time, Mikkel Rath's arguing that double jeopardy prevents you from retrying him on a count that he was acquitted of, which would be really obvious, right? Like, you've got acquitted, you can't retry someone. That's what double jeopardy means. The Georgia Supreme Court's like, but no, because it's as if the verdicts didn't happen at all. There was no verdict in these cases because the jury gave two such inconsistent, again, the Georgia legal term is repugnant, verdicts. That is the question up at the U.S. Supreme Court for this oral argument, is what happens

when under state law, you throw these two verdicts out. Is that a state process question? Or does it implicate the federal constitutional protection against being tried twice for the same offense? Okay, so David, just real quick, we're gonna read the double jeopardy clause so everyone can remember that. Fifth Amendment to the US.S. Constitution,

no person shall be subject for the same offense to be twice put in jeopardy of life or limb. David, what'd you think of the argument? You know, it was very interesting and I thought sidetracked early. So what was interesting about it is it seemed to me to be so obvious to the justices that in this case, and with an emphasis on this case that Double Jeopardy attached, that they were much more interested in not this case. pretty attached that they were much more interested in not this case. So, for example, or at least a lot of time was spent on not this case, because it appears that the outcome of this case seems

pretty obvious. And what I mean is, it appears pretty obvious to me that either all or almost all of the justices just flat out believe that, look, this was a verdict that was returned. just flat out believe that, look, this was a verdict that was returned. This is double jeopardy. But Alito brings up a different scenario from this case. And the scenario Alito brings up is, well, wait a minute. What if the facts here were different? What if the facts here were that the trial judge took a look at both of these verdicts and said, those are inconsistent, they're slash repugnant, whatever. Go back, try again, reach a consistent verdict.

What does that mean for you? Would that be double jeopardy? And they went back and forth about that. jeopardy. And they went back and forth about that. And it was interesting because I could tell, you know, the advocates sort of like, okay, well, that's not this case. And I don't need to provide. Not my problem, dude. Not my problem. You know, so the question, you know, the, what reason why the judge is that justice is asked is, or what, you know, Alito asked is pretty obvious. Does this then become a, we set a precedent that applies to one case only? Because from this point forward, trial judges will just know that if you have an inconsistent slash repugnant verdict that's coming towards you, you just send it right back to the jury

to fix the problem. And if that's what all this is, then it's kind of much ado about very little at all. Which again, from McElrath, the McElrath or whatever, his perspective, who cares? Who cares? That's not his case. But he did say,

look, double jeopardy still attaches if the jury's returned a verdict. And so I thought that was an interesting discussion and interesting on two levels. One was obvious the justices' minds are working toward, you know, what is the next case we would hear beyond this case, which was interesting. And the other one is just from a moral advocate standpoint, how do you respond when all of a sudden your argument gets derailed by an extensive discussion of facts that are not your case? But that you're going to win anyway. And you're going

to win anyway. Exactly. That's what's interesting to me is so very often you get derailed and you're losing. Yes. But getting derailed when you're winning presents a different problem in a way. derailed when you're winning presents a different problem in a way yes who is your who do you represent then future defendants exactly are you out are you no longer sort of a client an attorney for your client and now you're kind of a consultant for the justices they'd sort of had that feel like um what do you, you know, the justices are kind of having a discussion amongst themselves. And it's like, well, what do you think? You're here. You're here. You're as good as anyone. Yeah, exactly. You've looked at this stuff. What are your thoughts?

The advocate, by the way, for McIlrath is a former SDNY AUSA, so Assistant U.S. Attorney. So he has been on the other side, on the prosecution side of all of this many, many times. Has to be an interesting hat to wear for him on this. So you end up with more hypotheticals. So, for instance, the chief justice raises one. OK, well, what if the rule is that the jury foreperson has to sign the verdict in blue ink and when they turn it back in um it's in black ink but it says not guilty and then the judge is like no no go back and sign it in blue ink but in the time that it takes for them to go find a blue pen one juror has changed his mind and now they've got the mistrial. Is that double jeopardy?

And look, some of these, I think, intuitively were quite easy for me. And again, I want to say intuitively here, because that doesn't mean that's what the law is. And criminal law is often not just intuitive. But right, like if the rule says it has to be in blue ink under state law, I don't think that violates due process or anything. And so, yeah, you didn't have a verdict until you signed it in blue ink. And if something changed, well, then that's you didn't have a verdict before. Then same way, the reason that we pull a jury under some state laws. If you reached a verdict in the jury room and then you come out and under state law, they're going to pull the jury in the courtroom.

And one of the jurors just can't do it and changes his mind in the jury poll, then you didn't have a verdict. The problem here though, and this is what I thought was so interesting. You've got a few little law nuggets that are fun to pick apart. So under Supreme Court precedent, inconsistent verdicts are fine. Inconsistent verdicts, and the case in question here, is that you've got charges for possession of cocaine and conspiracy to possess cocaine.

And the jury convicts on one and acquits on the other. Those are clearly inconsistent. Right. You can't, and sorry, they acquit on the possession of cocaine and they convict on the conspiracy to possess cocaine. Like, no, no, you have to possess the cocaine.

And the Supreme Court has said, like, nope, we don't look behind why juries do what they do. Could be jury nullification, could be a compromise that was reached in the jury room, could be all sorts of things we don't even really want to know that the jury was doing but like that's how jury boxes work like we don't look inside inconsistent verdicts there's nothing that doesn't violate due process in any way but this is where georgia's repugnant law gets a little different and where uh the georgia solicitor general this is why i think it was my favorite non-big case oral argument because you've got the solicitor general of georgia arguing something he's got this little island to sit on and you've got nine justices who are not on your side throwing case you know questions at you and

you're just sitting on your island with a machine gun it's like like the Alamo, right? Like, you think your cause is just, you absolutely have an argument. And you're just taking on all comers. And I kind of just appreciated it. So here's his argument. A repugnant verdict is not the same as an inconsistent verdict. Because while in that acquit versus convict

in the cocaine situation, you're right, we have no idea. They didn't tell us the facts that they found. They just acquitted and convicted. Done. But in this case, they actually did tell us that they found inconsistent facts because these were special verdicts that included the mental state, right, that they found him both insane and sane. Now they were given the option to just acquit or just convict, but they chose not to. They actually picked these special verdicts, not guilty by insanity and then guilty, but mentally ill.

So his point is that's what makes it different than inconsistent and actually makes it repugnant under georgia law that the jury is telling you facts that they found that don't work together and what the justice is i think you're right david maybe nine of them but certainly certainly five of them yes are going to find is that like no we're not going to pick apart the difference between what georgia has decided is inconsistent and repugnant for the same reasons that we don't look behind why the jury did something.

Because if we believe that the jury could have reached these two repugnant verdicts out of a compromise, then it's no different than the inconsistent verdicts. And of course they could have done it as a compromise. Yeah. You know, and I do think that, look, he had the argument that he had, which is

this, he had all, what was the old, you fight with the army you have, you know, you fight with the case, with the facts that you have. And he had, he had this repugnant, inconsistent distinction. And by golly, that's what he was going to, he was going to have to stick with. And, you know, the, the interesting thing about it, and this gets to some of the hypos, like, well, what about the blue ink or whatever? The interesting question here at the heart of it is, okay, you have a federal, it's a federal right, a federal right against that preventing double jeopardy. And they're arguing, though, that jeopardy, what is or is not jeopardy, is defined entirely by the state.

But can that actually be the case when it's a federal right? So if it's a federal right, does that mean that, but what is or is not jeopardy is defined by the state, that you just have to accept whatever state definition exists for a verdict. Well, obviously, the answer to that is no. But does that mean that you have a very specific universal federal standard of what a verdict is? That seemed to be like the real question behind the question. And this gets, by the way, to why I said, why I've been using the term that the Georgia Supreme Court vacated slash voided the verdict.

Because those two are actually potentially different in terms of then their outcome. Because if they simply voided them, that means there was no verdict. But if they vacated them, that means there was a verdict. Right. But if they vacated them, that means there was a verdict. There was a verdict, right. And the Georgia Solicitor General, unfortunately, the Georgia Supreme Court did not give him the perfect army to fight with on that ground

because their opinion does not perhaps provide that they've understood what the distinction would need to be there um so there's a little bit of both now the georgia solicitor general is like no no voided voided they never existed right um and so for instance there is this 10th circuit case which justice gorsuch was on when he was a judge where the jury literally returns the verdict paper and wrote guilty slash not guilty guilty slash not guilty for one count well is that a verdict and is that a verdict of not guilty and can you not try him again

and the answer to that was no that's just not a verdict we have no idea what the jury was trying to say or what the verdict was that is a void verdict it's incomprehensible and but Gorsuch was like but that's not what happened here we know exactly what they tried to do you just don't like it because it doesn't make a lot of sense but there were two verdicts he's like no no there's not two verdicts it's like no there were two verdicts dude and that you know it was sort of silly that we even had to get to this but he's like okay if they had only tried him for malice murder and found him not guilty by reason of insanity. Could you try him again? It's like,

well, no. Okay. So the only reason that you're arguing that you could try him again is because there's another count with another verdict. That doesn't make sense under our double jeopardy. Right. Stuff.

But David, I also wanted to then get to what happens next. 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

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Use code ADVISORY at checkout to save. Terms and conditions apply. So you've already pointed out that like this case, we sort of know what the outcome is going to be. And remember, the Supreme Court takes questions, not cases. So they're simply going to answer the question on that's presented by this double jeopardy bit, if you will. But what happens to the case? Because in theory, right, one could imagine that this had gone up on that first Georgia Supreme Court decision where they vacated or voided both of the verdicts,

in which case, once that decision disappears, the verdicts are then reinstated, if you will. So if that were the Georgia Supreme Court case that was at issue here, they would not be able to retry him on the malice murder. That would be the double jeopardy acquittal. But they wouldn't need to retry him on the felony murder because he was found guilty of that. That's the one that McElrath wanted to get rid of in the first place. But that's not the case that is the vehicle for this. Remember, that was the first one that McElrath, I mean, the strategy here is clever AF because we're actually dealing with the second Georgia Supreme Court case, which means those

two verdicts were already vacated slash voided. Those verdicts are gone. Nothing the Supreme Court does, as best I can tell, would ever be able to reinstate those. They can only be sort of deciding on this second Supreme Court decision, which was only on the double jeopardy question of whether they could retry him on the malice murder. The felony murder conviction is already gone. So Mickelrath, in this sense, gets exactly what he wants. He gets to use the repugnant law state theory to knock out his conviction and then attack the repugnant state law theory for why he can't be retried. So we have a few things here. One, what is the state of double jeopardy law as it is? Can they even retry him for felony murder, et cetera?

So I want to get to that. as it is. Can they even retry him for felony murder, etc. So I want to get to that. But two, why wasn't he stopped from doing this? And so I thought, David, we could explain the most fun word that you never use in real life to our non lawyer listeners. Maybe you don't use it in real life. You tell your kids all the time they're stopped from arguing that. Yeah. Oh, they are a stop for making multiple arguments. Yeah. My three-year-old would be subject to so much collateral estoppel. I got to tell you, there's a lot of arguing up one pole until he gets to the top and then abandoning it and trying again with a completely inconsistent, for instance, a lot of what he wants right now,

he wants a popsicle. And so he'll tell me that he's very, very hot. And the only thing that can cool him down is something cold. But he leaves it up to me, right? And so I'm like, how about string cheese? That's cold. Not cold enough. Until I keep naming things and we get to popsicle.

But then of course, he'll be like, but I'm too hot. Sorry sorry i'm too cold and i need a cinnamon roll and you're like a stoppel man yeah inconsistent arguments um so a stoppel really honestly we could just use the lose the s it really just means but now i can't not say it you're a stopped from it's like the verb of stop, basically. You're estopped from arguing inconsistent things that you've already argued. But technically, that's not what McElrath's doing, right?

Sure, he argues he uses the repugnant law theory to knock out the verdicts. And he needs to knock out both in order to win, right? Like we talked about. But he's actually not arguing that the repugnant law theory is unconstitutional. He, in fact, would love for all of those verdicts to both get knocked out all the time.

He would like to keep that in place. He's just arguing the double jeopardy prevents you from trying him again on one of the two. So I don't think he is a stop from arguing this. Well, you know, the big question that I had is, OK, so you you have this, quote, repugnant verdict. It's so both of them are void. He comes to the Supreme Court and he successfully argues that you can't try me for malice murder again because of double jeopardy. So then George is like, we want bad guy needs to stay in jail.

Bad guy needs to stay in jail. So what do we have? We have a felony murder conviction that was vacated or voided. We will go back and try him on that one. But isn't there an argument just laying out there that is, you can't try him on this. The jury has already found he's what he had a mental defect there's already been a found finding a fact in this case in in the case against him that he was insane at the time of the murder

so that's right we get to a second estoppel problem exactly so at that point, can the state argue, no, no, no, no, that previous jury verdict, which is the Supreme Court has said is good and effective and stops them from trying him on malice murder. Is there a powerful it's effective enough to avoid a retrial on it, but it's not effective enough to have any implication for the new trial or on felony murder. Boy, this is interesting. Okay, so I'm putting on my prosecution hat and here's what they're going to argue and I think they're going to win. Okay.

Which is, again, we don't look behind what the jury decided and why. The jury could have decided that it was only in terms of the intent that he was insane, an element that is not present in the felony murder elements. And as long as you can show that there is some version in which that verdict could have applied to an element that is not at issue in the felony murder, then I don't think you're stopped from moving forward on that. But you, you are a hundred percent right that there's

going to be emotion on that. Yeah. It feels like, and tell me if you think I'm wrong on this, Sarah, but it feels like what happened is we have a guy who is getting lawyered out of jail. Absolutely. So, uh, because on the one hand, you know, the reality, inconsistent verdicts and things like that happen all of the time. And, you know, on the one hand, it would be entirely normal

for him to stay in jail for felony murder, even though he was acquitted. Correct. But this lawyer took advantage of this repugnancy doctrine to get it all avoided. I mean, this was a long game here, right?

These were several chess moves and they had to get it all avoided. I mean, this was a long game here, right? These were several chess moves and they had to get every single one right in order to get their dude out of jail. Now, in the end, I think he's going to end up in jail. But this is a heck of a gambit. Oh, it's incredible. It's so far so good. It reminds me a lot of, you know,

these offensive coordinators who like script out their first 15 plays and maybe like the first play is this weird lateral thing or whatever. And the coach says, what are you thinking? Is it just hang with me? You'll understand by play number 10. That's exactly where we are. Yeah, it's I'm impressed. I, I am impressed.

OK, so now I thought we'd bounce up a few levels just to do where double jeopardy law is. Because if you graduated law school before 1993 and don't practice criminal law, you actually probably don't know what the law is on double jeopardy anymore. Because the Supreme Court kind of flim flammed around in the 70s and 80s. And then in the early 90s, on what constitutes double jeopardy. So remember, it's no person shall be subject for the same offense to be put in jeopardy of life or limb. So what's the same offense? For instance, we obviously already know the answer of whether someone can be tried for both malice murder and felony murder in the same trial but what if i arrested you david for malice murder you got

acquitted and then i instruct the police to go pick you up again for felony murder can i do that is that not double jeopardy you just got acquitted for malice murder and now i'm just picking you up on something else. And it's the same death, right? Like it's all the same act. That's important to this. So there's this case called Blockburger. In 1932, this one's decided. And it says, as long as the two offenses

each have separate elements, you're good. There's no double jeopardy. That's not the same offense. So lesser included isn't going to work because the lesser included will have all of the same elements minus one. Nope. They each have to have two different, but felony murder and malice murder, no problem. Malice murder, you have to prove intent that you don't felony murder and felony murder. You have to prove a felony that you don't malice murder. Perfect. So under Blockburger, you're fine. But then the Supreme Court is going to go on sort of a long meandering path

where they feel like that just allows a lot of retrials that don't feel very good. And it's going to include a case decided in 91, I think in 91 called Grady, where they're going to come up with the same occasion test. And this is basically going to cover exactly our situation here. You only killed one person. And so you do the blockbuster test first, and then you do the same occasion test where you basically are asking whether they need to prove different facts as well. And if you fail that, then double jeopardy attaches. Well, three terms later, in Dixon in 1993, the Supreme Court, I mean, it's one of the fastest turnarounds on overturning precedent that I can think of. Three terms later, Justice Scalia is like, never mind,

that didn't work. In three terms, we've already had to make gaping exceptions. The lower courts can't follow this. It's a hot mess. We're going, it's atextual. There's nothing in the constitution that talks about occasion. It says same offense. And offense is about the crime itself

and about the elements of the crime. We're going back to the block burger test, get rid of all this nonsense. We're done. And so David, this leaves with an interesting law school hypothetical. Spoiler alert, it's a real case. Okay.

There's a six person poker game. The guy robs the poker game. Okay. First you try him for robbing David and he gets acquitted. Then can you arrest him for robbing Sarah? Six people, same poker game. Uh-huh.

So, I mean, under the literal wording and the literal meaning of the term offense, robbing Sarah would be a separate offense from robbing Dave. So. Did you just call yourself Dave? Well, in the hypo, didn't you say Dave? No, David, you. You.

Oh, oh, oh. Okay. Yeah. I thought you said Dave. Oh, anyway, in the hypo, robbing David is a separate offense from robbing Sarah. So. No, same elements. The victim doesn't matter.

Same elements. Victim, yeah. Okay. Well, but you have to prove the same element. I don't, I don't know, Sarah, because you robbed the poker game. You're saying you've robbed the common pot you've gotten to the problem here right it actually matters how you robbed the poker game exactly okay because if david if if you took my chips from in front if if i can say that i did

you did not take my chips um but he did take your chips, separate offense. But if it's he just swept the middle of the pot, same offense. So the way this case was weirdly actually decided, and this was pre, it's post-Blockburger, but pre this like rady flim-flamming around in Dixon. It was actually the ID of the perpetrator that was at question in the first case.

And so then they said that he couldn't retry them because it was only an identification question, not an elements question. Okay. But that's where you just like, that's where it all got so messy and where they had to fix this and go like, no, no, we're just doing elements. So yeah, I think if you swipe the middle of the pot, you can't just keep charging around the table with different victims, quite clearly under Blockburger. But I find that intuitively most people believe that if you're charged with both malice murder and felony murder, you get acquitted on one

and convicted on the other, but the jury hangs on the other one. Of's, you know, the jury hangs on the other one. Of course, the prosecution should be able to retry you for felony murder. There just wasn't a verdict in that one. So we get to try again. But that same intuition is that if you get picked up for malice murder acquitted, then the police shouldn't be able to arrest you the next day for felony murder. And we start the whole process over again. When in fact, legally, there's no distinction between those two. And it's simply that, you know, for instance, at the US Department of Justice, there's a prudential element that you go through before you even get to the double jeopardy questions. Prudentially, it is unlikely that

the Department of Justice would do something like that. But double jeopardy wise, I don't see a problem with it, even though it may like that. But double jeopardy wise, I don't see a problem with it, even though it may offend your intuition on double jeopardy. Right. Interesting. Interesting. I'm going to be very interested to read listener comments because we have a number of criminal defense attorneys. We have a number of prosecutors. And walking through, it'll be, I'm, here's my, here's my appeal.

And walking through, it'll be, here's my appeal, calling for thoughtful comments in response to Sarah's question on that. It's very, very interesting. I'll tell you, last night, between the hours of 11 and midnight, I was talking to a number of federal prosecutors. Because I live in fear of our listeners and our commenters getting something like this wrong. Now, I like it. I'll tell you, they were all federal. Okay. So I was not talking to state ones, but nevertheless. Interesting. Yeah. A good time had by all. And you know, when you go to law school, I think what you picture your post law school life to be like, is not usually what it's

like. But in this case, to get an emergency text message from your old law school classmate saying emergency double jeopardy question is exactly what pre law school you thinks is going to happen after law school. Yeah, I would say fair enough. 20 years later, it's 1130pm. You talk to this person once a year. And they're like, oh, yeah. Oh, I do stuff like that all the time. Texting my my smartest lawyer friends completely out of the blue. Gut check on this question. Does this seem right?

Yeah. Oh, absolutely. OK, so that was, I thought, a very fun oral argument. I think what happens next will be even more interesting. And so also for listeners, if anyone's down in Georgia, keep an eye on this for us. Keep us updated on how this goes for Mickelrath when it goes back down. He gets retried for felony murder.

He's going to argue that there are stopped because of the jury's previous finding on his mental state. I think he's going to lose that. We'll see. We'll see. Yeah. Yeah. But the more we talk through this case, the more I feel like we are just watching an impressive lawyering enterprise.

Totally. And maybe we're missing what the next play really is. Oh, yeah, exactly. We're only on like play 11 of the 15 play drive right now. So the other thing that I find interesting about this case for listeners is, you know, we've talked about, particularly in the conservative legal world, one of the, you know, you're applying originalism correctly

or whatever is when it comes out in a way that is against your personal policy preferences. And one of the biggest areas of that has been criminal law. Justice Scalia always used that as an example. He's like, I want all the bad people to stay in jail, but I am compelled by the Constitution and by a strict reading of that history to let all sorts of bad people out of jail because their Fourth or Fifth Amendment rights were violated. Gorsuch definitely taking up that mantle. And you saw definitely taking up that mantle, and you saw that in the oral argument,

really good examples of it if you're looking for something like that. And again, I just highly recommend the Georgia Solicitor General's argument of how to lose with valor at the Supreme Court. Yes, courageous. Courageous loss, Georgia Solicitor General. Davy Crockett at the Alamo level. But if you're a listener,

I think this is a good intuition check. Do you fall into the bad man should stay in jail because I don't want guys who kill their mom out on the street for any, you know, just on a technicality, on good lawyering? Or are you like, nope, that dude, you know, double jeopardy protects him. And maybe it will

even turn out that you can't retry him on the felony murder case. And that's just the way the cookie crumbles. So a good non-culture war, you know, it's not abortion. It's not even drugs. This is just the purest, I think, version of criminal law. He killed someone. What do you think should happen? Yeah. No, I do think that's interesting. What is your gut level instinct here? What does your intuition say?

And then run that through your legal analysis and see where you go. Yeah. All right, David, should we get to the Judge Ho concurrence in the Fifth Circuit? I'm so ready. You want to set us up? Yeah. So, Sarah, this case is real. This is really interesting to me.

I'm so glad we're making some time to talk about this. And this is involving Fifth Circuit. We talked about the Fifth Circuit probably more than the Ninth Circuit now, I would say. Probably. Definitely. Yeah, definitely. Yeah. say. Probably, definitely. Yeah, definitely. Yeah. Yeah. Oh, yeah. Yeah, definitely. What am I even saying? We talk about it more than the Ninth Circuit. So this is Fifth Circuit. We got Fifth Circuit on the brain again. And so here you have a case. And I'll just, you know, read the opening paragraph. Defendant Jeffrey Kersey

appeals to district court order in revoking his supervised release and sentencing him to six months of incarceration. A defendant has a qualified right to confrontation in a revocation proceeding because Kersey's qualified right to confront and cross-examine adverse witnesses was denied without good cause. We vacate the district court's order revoking a supervised release and remand for a new hearing. OK. Why did I read that? That's what the case this case is about. This case is about whether or not you had a right to confront witnesses at a revocation proceeding, revoking a revocation proceeding, determining whether or not your supervised release should be revoked. And so, okay, interesting case. What kind of right of confrontation do you have in circumstances like this? And then we scroll down. It's a very short opinion. Get down to

page eight and we get to Judge Ho concurring. Okay, so it's concurring in the outcome that on balance, the district court failed to make a showing of good cause. Kersey's interest in confronting the adverse witnesses outweighs the government's interest in denying the opportunity. Thus, the district court erred in denying Kersey

his due process right to confront and cross-examine adverse witnesses. Okay, that's what the case is about. Simple, short, seven pages, whatever. Texas, you better have a good reason for denying someone the ability to cross-examine to confront witnesses. Simple. Then we get to Judge Hogue concurring. Violent criminals should be prosecuted, convicted, disarmed, and incarcerated. But we don't presume that citizens are dangerous criminals. We presume they're innocent. And to overcome that presumption, we require more than just notice and hearing. We afford the accused with the assistance of counsel and a meaningful opportunity to present evidence and confront

adverse witnesses. We impose a robust burden of proof on the government. And when in doubt, we err on the side of liberty. These principles inform our decision today. I accordingly concur. Okay. Got it. And then he says, the decision today reminds me of our decision in Rahimi. I'm like, wait, what? When you sent this to me, Sarah, I was like, okay, casually scrolling down to page eight. I said, go to page eight. Yeah, what's interesting here? And it was one of those record scratch noises in my brain.

What does Rahimi have to do with any of this? So Rahimi, listeners, for those who may not have these case names at the tip of your tongue, Rahimi was the case that the Supreme Court just heard involving whether someone who was under an agreed civil protection order for domestic violence, an agreed order, could be prosecuted for continuing to possess a firearm in violation of federal law. Leader or listeners will know that Supreme Court just heard the oral argument in that case. And let's just say it does not look good for the Fifth Circuit's position in the case. The Supreme Court seemed

extremely skeptical of the Fifth Circuit's position that this agreed civil protective order could not, in fact, be the basis of a prosecution for unlawful gun possession. of a prosecution for unlawful gun possession. And Judge Ho appears to be displeased, perhaps, Sarah, with maybe the way the case was argued or maybe the way the Rahimi case was presented in the media. Well, and remember, the argument was very lopsided. Very. The argument on behalf of Rahimi,

so on behalf of Judge Ho's concurrence in the original case, for instance, was sort of muddled all over the place. It was not a clear defense of it whatsoever. Yes. So Judge Ho decides to use this random case, this random criminal case, to go back and relitigate Rahimi. So he says, the decision today reminds me of our decision in Rahimi.

We initially upheld his conviction, but we later reversed in light of the Bruin case. Bruin involves the Second Amendment, not criminal procedure. But Bruin admonishes us not to treat the Second Amendment as a second-class right. Okay. So in Rahimi, we followed the court's directives and conceptualized Bruin not as a substantive right of dangerous criminals to run armed and free, but as a procedural protection for those subject to disarmament on suspicion of criminal activity. We applied the history and tradition test articulated in Bruin and found that the only historical analogs

relevant to Rahimi involved the use of the criminal justice system, not civil protective orders to disarm dangerous criminals. And so he goes essentially just back through Rahimi to argue again his core point in that case, which was, wait a minute,

this was just not sufficient due process to deprive someone of their Second Amendment right because he wasn't a convicted felon. Yes, he was subject to a civil protective order. And yes, he received notice and opportunity for a hearing, but the order was entered without counsel or other safeguards, and it didn't even include a formal hearing or judicial record, nor did it apply a meaningful presumption of innocence or robust burden of proof. But then this was my favorite part. So yes, Judge Ho says, he agreed to the order, but without any of the protections

we typically provide to the accused to ensure that they can meaningfully protect their rights. So in other words, he took the fact that this was an agreed order and was like essentially saying, but what else was he gonna do? He didn't have the kind of due process protections. So he really is kind of going back

and trying to take a second bite at the Rahimi apple. Fascinating. Fascinating. Sarah, what did you think about it? It's not a full, he didn't eat the full apple. He wanted to take a few specific bites. And I think those specific bites are interesting. And again, I wish they had had a better hearing in the Supreme Court's oral argument. Because while, you know, you and I have talked about this case quite a bit, and I think I probably fall where the Supreme Court's going to end up on this one, i.e. Rahimi loses. Nevertheless, our system is best when it's adversarial,

which, by the way, is going to be Judge Ho's point here. And it did not feel like a very well fleshed out adversarial process at the Supreme Court. And I think we all lost out because of that. And so I'm actually happy to read Judge Ho's concurrence here for that reason, because I think fleshing this out more is helpful. So a couple points he wants to make. One, the Supreme Court has repeatedly granted relief to dangerous criminals out of concern about the procedures used to determine their dangerousness. This is the most obvious thing in the world, right?

It gets to our previous conversation. Right. We let murderers out all the time. The whole concept of our judicial system is that we would rather see nine guilty men go free than one innocent man behind bars. That's why we have these procedural safeguards. But it is fun to see Judge Ho list out some of these cases. CEG, Ramos, murder,

Davis, violent felonies, Johnson, armed career criminals, Crawford, assault and attempted murder, Maryland, sexual abuse of a child, sorry, Maryland v. Craig, Miranda, kidnapping and rape, Gideon v. Wainwright, burglary. In none of these cases did the Supreme Court decline to uphold constitutional safeguards just because the defendant was credibly accused of a dangerous crime. If government must turn square corners when it comes to the removal of illegal aliens, Ms. Chavez v. Garland, surely it must do the same when it comes to the basic rights of our own citizens. The second point he makes, which I think is going to be less well received, but I think it will be misunderstood, I guess is my better point here. He says this case further parallels Rahimi in another way. In granting

relief to Kersey, the guy who's actually at issue in this case, our court acknowledges the unfortunate fact that people sometimes allege domestic violence, but then later recant. When I read that, I was concerned I was going to see a bunch of headlines that Judge Ho just called domestic violence victims liars. That's not his point. Keep reading. In the Kersey case, Marsteller's recantation affidavit, if truthful, exonerates him of the alleged crimes. But the district court observed that women in abusive relationships will change their minds out of fear or economic reasons. As in, you don't know which time they're lying. Was it when they accused him of domestic violence or when they recanted that he committed domestic violence? And so Judge Ho's actual point here is,

when faced with competing visions of the truth, judges must have some mechanism by which to determine which version of events to credit. The procedures must be sufficiently reliable to comply with the Constitution and inspire confidence in the results. I mean, this gets to the adversarial process, right? Yeah. If you don't have that, what are we doing here? That's what our whole system is based on. And the third point, David, that I thought he made, well, I mean, remember in the oral argument for Rahimi, there literally wasn't an opening statement from Rahimi's advocate. This is the opening statement, right? It's like, let me tick through three things. One, we let dangerous criminals out all the time to protect their constitutional safeguards. Two, our adversarial process is key to determining truth. It's the best way we've ever found.

And three, the Second Amendment, when you said it wasn't a disfavored right, then we need to look to other constitutional rights and what we do to protect those. And so there's this great footnote about the First Amendment. So the line leading to the footnote, the court has construed other provisions like the First Amendment to require procedural safeguards to protect substantive rights, like freedom of speech. Footnote, it is important to ensure not only that the substantive First Amendment standards are sound, but also that they are applied to reliable procedures. This is why we have often held some procedures, a particular allocation of the burden of proof, a particular quantum of proof, a particular type of appellate review, and so on, to be constitutionally required in proceedings that may penalize protected speech.

That's a 1994 Supreme Court case that he's quoting from Waters v. Churchill. So David, if those are the three points, are you persuaded at all? Are you moved? Is the needle moving for you? Oh, on Rahimi? Yeah. Oh, Lord, no. Okay. Why not? I guess. Because yeah, these are good points. I okay. I think the best point that is made or the most interesting point that is made to me is essentially this argument that I've heard from a lot of people. Wait a minute. Wait a minute. OK, on the one hand, the idea that somebody who's subject to civil domestic violence or protective order should possess a firearm seems really, really bad. seems really, really bad. But if you lift up the rock on these civil protective orders, what you'll find is the process is just awful. That whether someone is actually subject to a civil protective order isn't actually necessarily indicative of whether they're dangerous because

these things are just entered as a matter of course. So without the sort of procedural safeguards that we would deprive someone of their liberty, for instance. Right, yes. Now, but he talks about there was notice and an opportunity for hearing, for example. So he does walk through- But no right to counsel. But there was not a right to counsel.

But right to counsel is not, if you're gonna look more broadly at constitutional deprivationsations it's not in fact the case that you always have a right to counsel in connection with a process that is due and when the key word being right to counsel in other words having counsel appointed for you for example yes when your liberty is at stake i.e when we're going to put you in jail and things that are in that orbit let's say yeah that's where like Gideon right to counsel attaches. But for instance, you can absolutely be deprived of your First Amendment rights without a right to counsel.

Exactly. Yeah, exactly. So it is not the case that you have a right to counsel if there's any deprivation of liberty. And again, David, you made this point, but now I'm realizing why you made this point. You absolutely have a right to have a lawyer that you pay for. Yes. And they can't tell you you can't have a lawyer in the room. It's just that you are not provided. Someone else will not pay for that lawyer. Taxpayers will not pay for that lawyer. Right. Right. Interesting. Yes, exactly. And so I think...

But you have a right to a lawyer in every court proceeding. Right. As in a right to have a lawyer with you that you pay for. Exactly. So the deprivation here is not the kind of deprivation that has ordinarily in our understanding of constitutional law, given you a right to court appointed counsel. Okay, so I think that's a little bit off.

The other thing that was, if you remember going back to the Rahimi oral argument, it's one thing to sort of say, okay, look, I think that the procedures are just too lax this stuff is rote it is these orders are granted these requests are granted all the time but if you go back and you look at the rahimi oral argument you found that that wasn't the case at all that in fact these orders are requests for these orders are often denied. And there was actual numbers used at the oral argument. And so doesn't that, so in my view, it's one thing when you hear, and I don't want to compare,

I'm not, I want to be very clear. I am not comparing Judge Ho to a man's rights activist, or to men's rights activists. But when you hear from men's rights activists, for example, you'll hear a lot of horror stories about these domestic violence restraining orders. And you'll hear claims that these things are just granted, just, you know, without regard, actually to evidence, etc. But it's one thing to sort of say, well, that's what the vibes are about these things versus that's the actual reality of these things. And one thing that I thought was interesting from the case was and from the oral argument

was, wait, if you actually lift up the rock, you find out at least, you know, in these relevant jurisdictions that it's not the case at all that they're just wrote. And I think he also just pays so much short shrift to the fact that he agreed to the order. think he also just pays so much short shrift to the fact that he agreed to the order. Yeah, he, he agreed to the order. And I think that's much more relevant than he seems to think that it is. He, the way he casts it, it's sort of like, well, what else is he going to do? He doesn't have a right to counsel. Wait, that's not how this works at all. And David, can I just go on a little cul-de-sac of something that you've said before

on the experience people have with domestic violence restraining orders? It reminds me of something when we talked about racism and systemic racism in the country and these conversations we were having at the beginning when we started this podcast. Yeah. And when George Floyd were having at the beginning when we started this podcast. Yeah.

And when, you know, George Floyd was happening and some other stuff. And something that you said, which I thought was really impactful, was that if you're a black person in the country, and you talk to 10 white people, and one of them is racist, you've experienced, you know, severe racism. 10% of the white people you talk to are racist, etc. If you're a white person and you talk to 10 white people, why would they be racist towards you?

You're white. So you're just having a very different experience in the country. There is something sort of similar going on here where if you're a man talking about domestic violence restraining orders, the only time that's going to come up with your predominantly male friends is going to be when they feel that they were falsely accused. Right. If you're a woman,

and again, you're more likely to have predominantly female friends. The only time it's going to come up is when it is true. Yeah. And so my experience with domestic violence restraining orders, I feel like is very different than my male friends. They will tell me the horror stories about their friends being falsely accused. And I will tell them the horror stories about, you know, calling 911 as he tried to bash down the door to get to my friend and me and, you know, the phones that we called the mobile phones, but whatever they were like the wireless phones that had to go in the cradle and they were huge. And they would run out of batteries immediately if they were off the cradle for more than 10 minutes. Like it's me and that phone

standing between him to her. Like that's my experience as someone walking through a restraining order. But it makes perfect sense why it wouldn't be theirs. Anyway, so there's just this male, female distinction that's not sexism at play. It's just how you're going to experience the world. Well, right. And also a man who has received a domestic violence restraining order and it was merited is not going to run around talking to other men going,

yeah, I got the restraining order. I deserved it. I shouldn't have hit her. I deserved it. She didn't do the dishes right, but. Yeah. I mean, so again, that's why actually looking at real numbers and how cases actually come out and what are the actual procedures.

So he talks about there is notice isn't noticing an opportunity to be heard. Man, that's procedure right there. You have a notice and an opportunity to be heard. You have an impartial adjudicator. impartial adjudicator. They're only, you know, yes, there are, there's a lower burden of proof than proof beyond a reasonable doubt for these domestic violence restraining orders. Well, the very nature of the thing is trying to prevent the kinds of events that lead to the necessity of proof beyond a reasonable doubt. The entire goal is to provide a zone of safety. And then the other thing about this,

and I'm gonna keep beating this drum, Sarah. If you remember back to the Heller decision and including in Bruin as well, there was a key phrase that was used, responsible law-abiding citizen. Responsible law-abiding citizen. And what Judge Hoth's opinion seems to be doing is say, well, the law-abiding portion of this to establish that you're not law-abiding is going to require some sort of proceeding that's going to require proof beyond a reasonable doubt.

Okay. Okay. But what about the responsible? The word responsible, that one matters as well. It's not the same exact thing as law abiding. It's not the same exact thing. And a person who is engaging in sufficient amount of threatening kinds of behavior to be subject to a domestic violence restraining order granted after due process or granted after agreement, that is to me blaring, I'm irresponsible. I'm irresponsible. Even if there hasn't been an

adjudication of guilt or innocence in a criminal case. And so that was, again, going back to our very first discussion of this. I was like, where's the responsible? Where's the real discussion of the word responsible? Because it's important enough that the Supreme Court has said it many times, many times. So I thought, you know, that's where I find it unpersuasive. Well, I wish Judge Ho had been given some time in the oral argument. Agreed.

I think we'll see more of these types of concurrences as, frankly, it's probably our fault. And I don't mean specifically our podcast. Oh, it's our podcast. But we're part of a larger media ecosystem where we're now doing like Monday morning quarterbacking on oral arguments, various briefs at the Supreme Court. And these judges are seeing their opinions get picked apart in a public way by people, again, like us, not us, we're so nice and perfect. Oh, of course.

That you're gonna see judges be like, wait a second, you're not hearing my point. Let me try again. I mean, we're so nice and logical and reasonable, Sarah, that when judges hear us pick apart their opinion, their immediate instinctive reaction us pick apart their opinion, their immediate instinctive reaction is regret for their opinion. Well, speaking of concurrences, our next episode is going to have a very, very special guest

and friend of the pod. Judge Kevin Newsom is joining, famous for concurring with himself. And we'll talk about when he concurs with himself. I assume sometimes, you know, at least in his own home, he dissents with himself. Who knows? Yeah. So we'll talk about that.

We'll talk about writing. He also teaches this incredible class where, David, one of the main topics that he talks about is, drum roll, standing. That's right, David. We're going to have a standing expert on the pod for the next episode. The thing you've wanted all along, it's happening.

Yes. And this is fantastic, Sarah, because I've been getting a number of messages pleading with me personally because people don't like the way I talk about standing. Well, good. We're going to have a real person talking about standing. Article three and all that jazz,

along with many other topics that I think are going to be super fun. That'll be the next episode. And David, I want to end with one more note from the comments section of why I love our listeners. But this was incredible. So this listener was flying home to D.C. and seated next to someone on the Jarkesee team. That's the SEC v. Jarkesee, the right to a jury trial. This is going to affect all sorts of administrative legal proceedings. We will certainly be talking about that argument,

the bankruptcy argument, and that 16th Amendment argument next week. So he was seated next to someone on the Jarkesee team for the oral argument. He notes, I was in coach. He must have been flying standby or something. First of all, depends which side. If they were on the SEC side, then yes, flying in coach. The government doesn't get to fly anything else. But if they were on the jerks, he said, I am surprised to hear they were in coach. Regardless, he says, when I mentioned something about non delegation, he asked if I'd gone to law school before becoming an engineer.

something about non-delegation. He asked if I'd gone to law school before becoming an engineer. I felt like I was in a Holiday Inn Express commercial because I just said, I listened to a lot of advisory opinions to which he said, ah, yes. I love it. Ah, yes. No, I'm not a lawyer, but I do listen to a lot of advisory opinions. Uh, yes. No, I'm not a lawyer, but I do listen to a lot of advisory opinions. Perfect. Perfect AO fans.

I love it. I don't know. I mean, I think I know, but it is incredible to me what percentage of our listeners are engineers. Obviously, we have a high number of lawyers who listen and judges and law clerks and all of that. We love having you. But I love our engineer listeners.

Yeah. Well, you know, it's that very logical STEM mind that actually plays well with the law. And there should be- One of my co-clerks had been a computer engineer for 10 years at Microsoft before he went to law school and then clerked with me for Judge Jones. And like, we used to joke that he was a robot,

but like he also might be a robot. Mind you, he's married with a couple of kids. So I don't know. But yeah, very, very logical. Well, my oldest daughter, who's about to head to, well, who's been admitted to UChicago and is deferring for now, math major. Our family tutor for the LSAT who tutored me and tutored Camille and tutored Austin and tutored my son-in-law and tutored my nephew is my dad.

I was like, wait a second. He's a math PhD who wrote a logic textbook. And that's how he tutored us for the LSAT is he literally taught us his logic textbook. And that was the foundation going all the way back to 1990 when I took it the first time to, you know, when my kids took it, that I said, the building block of the LSAT is logic. Absolutely. The first thing you need to do is take a logic course. If you haven't taken one, tutor yourself about that logic. Can I tell you, though, that's the building block of the substance of the LSAT. Can I tell you what

the real building block of the LSAT is, though? This is my LSAT tip for all listeners, which, again, I don't think you should go to law school. But if you're going to ignore me on that advice, at least hear me on this advice. The actual building block of the LSAT, substantively, yeah, it's logic. Sure. It's pattern recognition. You know about the like Japanese chicken sexers, David? Oh, right. Yes. So Japanese chicken sexers are handed chicks and they can tell you whether that chick is male or female, even though nobody can tell you, including the chicken sexers, how they know whether the chick is male or female. You just like

start recognizing a pattern that is not describable. And we've seen this in other parts of human brains. We can detect patterns that we could not verbalize. There are patterns in the LSAT and I can't tell you what they are. I can't even explain why I can figure them out. But if you do the real old LSATs, not Princeton Review, not, you know, whatever the test prep ones are, those are different patterns. They're not the same. But the actual LSAT has patterns to it. And you will start to subconsciously pick up those patterns. So you just got to do a lot of the old tests and get that pattern recognition in your brain. And especially if you're an engineer or a math major, I think it's going to come pretty

quickly to you what those patterns are. Again, and I can't describe them. That's a very good point. No, I think that's exactly right. Which is one of the interesting reasons why I have seen people have more success in improving their LSAT score

than I've seen people have in improving their SAT score. Absolutely. Yeah, I have seen massive improvement in LSAT scores. Camille did LSAT tutoring and some of the improvements that she could tell you about are pretty gobsmacking. And I think pattern recognition is a part of that. Are you allowed to tell everyone Camille's score?

Because I'm so proud of her. I don't know if I want to embarrass her now that she's got- It was really good. What was your score? Well, I was back in the old scale, 46. Oh, I have no idea what that means did it was out of 48 so did your daughter beat you it sounds like yes if you got 46 out of 48 then she beat you that is a subject of dispute that is a subject i will just say that is a subject of dispute it is enough apples and oranges

that we have um we both have ammunition. Interesting. Yeah. Interesting. There's enough apples and oranges. But yeah, she did very well. Yeah. So she did very well.

I don't want to embarrass her publicly because there are future classmates of hers that are listening. That's a good point. That's not fair. Yeah. Yeah. Well, regardless, she got into University of Chicago.

So I think we know she did very well. But I think she beat you. And that's what's important. And what's also important, I'll note is that also on that different scale, but I beat my dad. So. Oh, good. Okay. So I mean, you two can argue about why the scale, like the test was harder, the scales harder, blah, blah, how many questions you missed versus, I think I did miss more questions, but it doesn't matter because other people missed more. So it's a bell curve. And that's the reason why you get the different ammunition

because they do a percentile weighting based on each test group. Yep. So the real question is your percentile. Yep. And now they narrow that down more precisely than they used to. So we'll never know, Sarah.

We'll never know. All right, listeners. Again, next episode is going to be an extra treat with Judge Newsome. Get excited. And we've got other judges, David, in the pipeline that are going to be fun. They've got papers coming out, books coming out.

All of a sudden, like we've, we're going to have good lineups. We should just ask Judge Ho to come on and say, Judge, you have an hour to relitigate Rahimi. Well, you know, I'm friends with Judge Ho. I've talked to Judge Ho about coming on the podcast. I know. And I've, I've met and liked Judge Ho a great deal. He shies away from public conversations.

Yes, it's such a shame because he's a really personable guy. I know. Like a very, he would be a very fun podcast guest. And so that's our offer. Judge Ho, come on the podcast. We're not going to say we'll give you the whole hour to relitigate Rahimi.

I will. It's my podcast. We're not going to say we'll give you the whole hour to relitigate Rahimi. I will. It's my podcast. Okay. True. True. An even better offer than the one I'm making. With that, we will see y'all in the next episode. Thank you.