Advisory Opinions - Murdaugh Trial and Georgia Juror… Eventually (Catching Up, Ep. 2!)

Episode Date: March 7, 2023

The saga continues with an episode that really should come with its own trigger warning for being just too sexy. Take a deep breath… -Safe spaces of yore (David's establishment clause victory) -The Finality Question, or: Losing My Jurisdiction -A death row case creates strange bedfellows and scrambles Sarah’s grand theory of the Roberts court -David can’t wait to tell you about this Bank Secrecy Act case -Is anyone still listening? -What happens when you pick the wrong boyfriend? -Gorsuch is annoyed -Excited for escheatment! -The Murdaugh trial: Proof of Stupid -Should we feel bad for the Georgia grand jury foreperson? Show Notes: -City of Ocala, Florida, Petitioner v. Art Rojas, et al. -Supreme Court asks for more briefs on important election-law case -Links to SCOTUS opinions -Was the Alex Murdaugh Guilty Verdict Too Hasty? -That one juror Learn more about your ad choices. Visit megaphone.fm/adchoices

One quick thing, Sarah, should we tell people while we're slogging through cases that are super complicated that we haven't talked very much about before that they need to hang with us because we're going to talk about the wild Georgia grand juror and the Murdoch murder case by the end of this? That's fair. Yes. Yeah. Hang on, guys. Hang on. Hang on. Hang on. Welcome to Advisory Opinions. I'm your host, Sarah Isber, joined by special guest in live. It's David French, y'all. And hey, look, quick note before we get started. It's David French, y'all. And hey, look, quick note before we get started. We have heard you on some of the complaints and we are switching platforms starting next week. In terms of how you'll get this, we hope it'll be seamless, but no promises. And it's to fix some of those glitches you've heard, etc. So bear with us again starting next week or so. have heard, et cetera. So bear with us again, starting next week or so, switching platforms. Hopefully you won't notice a thing. It'll all just be totally the same. Today we have so much more Supreme Court stuff in this part two episode, including some new stuff that wasn't even around in last week's episode that we're going to start with. But we had tons of opinions that we didn't get to last week, David. And I love opinion hand downs because none of them are the hit parade cases,

unless you count as cheat men as hit parade, which I know we kind of do, but most people don't. And yet, super interesting. There's something for everyone. And some of these cases, I just highly recommend for the law students out there, but we'll get to those. We've also got a dissent from denial of cert that we're going to talk about. And we're going to start with a new statement on the denial of cert from Justice Gorsuch

and dissent from denial of cert from Justice Thomas in a case David will introduce us to. And with whatever time we have remaining, we got plenty of other stuff we need to get through. Thomas in a case David will introduce us to. And with whatever time we have remaining, we got plenty of other stuff we need to get through. And our next episode, part three of this little catch-up game, will be at the University of Kentucky Law School this week, which we're so excited about.

Go Cats. Live with audience episode for the next one. All right, David, do you want to introduce us to this case? It's an establishment clause case. It's a lemon case. It's all the things and it was denied, sir. Yes. So this case is interesting for a reason I'll describe in mere seconds. It's called City of Ocala, Florida versus Rojas. And essentially what this is about is a prayer vigil. It's called City of Ocala, Florida versus Rojas. And essentially what this is about is a prayer vigil. It's about a prayer vigil that was hosted in part by a city, by a police department that included chaplains from the police department. And essentially the question is, the underlying question of the case is, did this, a prayer vigil, violate the establishment clause? But that's not what we're going to talk about.

But I'll just read from the beginning a bit to give you some of the factual background, and then we'll talk about what is interesting about this. So this is from Justice Gorsuch, a statement respecting the denial of certiorari. And it says, faced with tragedy, the city of Ocala, Florida, searched for ways

to bring the community together. After a shooting spree left several children injured, police appealed to community leaders for help. A local NAACP official suggested to the chief of police that he contact religious leaders

to facilitate conversations between residents and law enforcement. A local minister, in turn, proposed holding a prayer vigil for the victims. The chief agreed to organize the event and police chaplains participated in it. I like this next sentence, Sarah. But instead of unity, litigation followed. It was always thus. That could be a one-sentence description of much of our political environment for the last 20 years. Instead of unity, litigation followed. Several atheists who chose to attend the event sued the city, alleging that the event's religious themes violated the First Amendment's establishment clause.

So first, the district court granted summary judgment in their favor that it did violate the establishment clause. It says the court reasoned that individuals enjoy Article III standing to contest religious speech they find offensive, and that the vigil violated the establishment clause under the terms of a case called Lemon v. Kurtzman we've talked about. On appeal, the 11th Circuit agreed that at least

one of the plaintiffs had standing to sue, noting that she had direct contact with prayer she found offensive. It didn't matter that the plaintiff went to the vigil knowing that she would be offended. What mattered was that the prayers reached her ears. Still, the 11th Circuit vacated the district court's decision on the merits remaining the case for reconsideration in light of this court's intervening decision in Kennedy v. Bremerton School District.

That's a case we talked a lot about involving the praying coach. This was the case that articulated quite clearly that the Lemon test, Lemon v. Kurtzman, was no longer good law. Now, what's interesting about this dissent from denial of cert? Statement from denial of cert. Statement regarding denial of cert, yes. As in Gorsuch agrees that they should have denied cert. Thomas is the one who's going to say, no, we should cert should have taken it yes exactly so the question here involves something called offended

observer standing okay so what is we've had a lot of conversations about standing what is offended observer standing an offended observer standing is a doctrine that has allowed, in the lower courts at least, individuals who are offended by a public display of religion. And when I say public display of religion, I don't mean a private individual publicly displaying their religion. I mean a public entity displaying, say, for example, a religious symbol or a public entity permitting or participating in a prayer service such as here, that for many years, if you were a plaintiff, you could actually go into court and claim and have your establishment clause claim heard on the basis that you were offended by the display of religion without showing any other underlying harm, just seeing the cross or hearing the prayer

was offensive to you and that granted you standing. And this is, Sarah, long been an outlier in standing law because as a general matter, the fact that I'm offended without any other evidence of harm doesn't give me the ability to get in court. So if you're a public official, for example, and you're a Republican and I'm a Democrat and you say those Democrats are demonic instruments, no, let's not use demonic because that has religious connotations. Let's say those Democrats are, or those Republicans are evil or whatever. Even if I'm on the opposite side of you and I'm really offended by your insult, the mere fact that I'm offended doesn't give me the ability to get into court to challenge your statements. But in the establishment clause context, the fact that I

might see a cross or a nativity scene or hear a prayer has been enough to get you into court. And so this is what was initially before the court was this very notion of offended observer standing. And the court said, nope, not going to hear it right now. The lower courts are going to reevaluate this entire case under Kennedy v. Brimerton. So we don't have to deal with that right now. And Gorsuch was saying, at some point, we're going to have to deal with it. And Thomas was saying, we should have dealt with it now when it comes to offended observer standing. So here's my question. And I agree with you. And we've talked about this. Standing is a mess at the Supreme Court right now. It's a mess.

It depends on which, you know, what merits doctrine you're actually challenging in terms of then what the standing is, which is backward, right? Standing is how you have to get into court in the first place. It shouldn't be particularly relevant in that sense, whether it's an establishment clause case

or a spending clause case, you should either have this particularized harm or not. And in that sense, the offended observer standing has always seemed strange because it seems like a lower bar than, for instance, taxpayer standing. At least taxpayers can point to something, albeit very, very small, that like, yes, your money was spent on something that you think violates the law. Therefore, you have an injury and you can go to court. No, we all know that taxpayers don't have generalized taxpayer standing, regardless of the fact that you can point to like one penny of your money went to

something. And therefore, you get into court to be able to challenge why it might be unlawful. This is the whole student loan case problem. Yes. And so in that sense, offended observer status seems like an even lower bar. However, David, how is one supposed to challenge establishment clause stuff if being a person who observes the government establishing a religion? Let's make it more egregious. This obviously is not a particularly egregious case. I'm not offended by it. And so in that sense, the sort of eggshell plaintiff side of this

is a bit of a hot mess. But let's take one where, I don't know, let's take the Ten Commandments case. Part of the reason that that was upheld. The Ten Amendments would be the Bill of Rights. Whatever. Also an establishment of something. All right. The Ten Commandments case, this is, you know, back, God, it's now been 20 years or whatever it's been, you know, outside of the Austin, Texas state legislature, there's the Ten Commandments monument, but there's also a zillion other monuments and like a flamingo. And, you know, basically it was like, if there's the Ten Commandments monument, but there's also a zillion other monuments and like a flamingo.

And, you know, basically it was like, if there's a menagerie, that's kind of fine. David, let's assume that we change the facts of that and Texas removes everything else and now replaces it with a giant 30 foot, Jesus is King, 10 Commandments monument that you have to walk by in order to get into the doors of the Texas state legislature?

Who has standing to sue other than someone who observes that and is offended by it? Yeah, that's a really good question. And it really raises this issue that, okay, there are some violations of the Constitution for which there is no judicial remedy. Nobody's going to like that answer. Lots of people are not going to like that answer.

And one of the key areas where that is most true is one of the areas that is most consequential to all of our lives. And that is war and peace. For example, the Constitution states that it's Congress that shall declare war and presidents are commanders in chief. And so in theory, there is a way in which those two political, that the president could violate the constitution by initiating military action. Something that's incredibly consequential that can cost people their lives. And yet the court has generally held that

to be not justiciable. That is a conflict left to the political branches of government. The court isn't going to enjoin a war. In other words- But I see such a huge difference between that and an individual right. Because, and let me tell you why, by the way, just for listeners, because what you're

talking about is a structural delineation of the constitution. And so the institution that is being offended in that sense, Congress has other tools at its disposal. It can impeach the president, it can withhold appropriations. I'm not saying those things are likely, but that's sort of some of the built-in structural parts of the Constitution as well, which could protect those institutional rights. But when we're talking about an individual right, which initially, of course, was to prevent the federal government from establishing a religion, I guess I feel less comforted by that explanation that it may just not be justiciable. Then why have the Bill of Rights at all?

Well, I think that some of the differences, so for example, if I have a free exercise right, which is unquestionably an individual right, which is I have the ability to exercise my faith and the government steps in and says, you cannot have your Bible study. You are stopping me from exercising an individual right in the same way that if you say, you're going to be expelled from school for saying these words that the government doesn't like,

then I have a concrete harm and a violation of my individual right. Now, the establishment clause in some ways isn't so much talking about an individual right in the sense that if what I'm looking at is a Ten Commandments, it's not that I have an individual right not to look at the Ten Commandments. The question is, in what way does the Establishment, how would an Establishment Clause violation violate my individual rights is less clean than saying, how could a prohibition against me exercising my faith violate my individual rights? Or how could shutting down my newspaper violate my individual rights? There are establishment

clause violations that absolutely do implicate your individual rights. The question is when it comes to something along the lines of I'm required to see a Ten Commandments display or I hear a prayer that I don't like, is that really a violation of your individual rights? It can be unconstitutional, but is it a violation of your rights, Sarah? That's the question that I think is interesting about some of these establishment clause cases, because I can see any number of circumstances

where I could say the court, I mean, that the government has violated the establishment clause, but I cannot trace and I cannot establish an individual particularized harm that I have suffered as a result of that violation of the constitution. And I think that's where people really wrestle with this. All right. I hear you through that and I'm somewhat persuaded. And then it gets back to what I was dissatisfied with, I think, in the Kennedy opinion, which is that in the school context, there needs to be a more clear coercion test. Because if we get rid of offended observer and we sort of have beefed up free exercise, get rid of offended observer, and we sort of have beefed up free exercise, you were back to and worsened by the problem that I've described when we talked about the Kennedy decision and argument,

and I've beaten this horse, so I won't go into it too much. But this idea that me, a high school student in orchestra, had to sit through a Christian prayer before orchestra concerts. If we just say like, well, it doesn't matter that you sat there and were offended by it. I think it has to be different in a school context where the student either has to be at the school because it's during school hours or it's an extracurricular activity that the student is doing. It is an official school function. To say that I don't have to be an orchestra would seem to miss the point just because it was an after hours concert. I do see a distinction between that and a government organized and participated in vigil that this person voluntarily went to so that they could then sue about it.

Yeah, right. Exactly. One of those is just more sympathetic than the other. And so I would hate to make the law based on what I see as frivolous litigation on offended observer status versus high school, junior high, elementary school students who are actually having what I would consider far closer call establishment cases in their schools. So I've actually had, I've actually filed an establishment clause case in my career and won it. And so the facts here, let me tell you the facts of the case that I filed and won. And it was against Georgia Tech, Georgia Institute of Technology.

And they had a safe space training program. This is going back to the early 2000s. So if anyone thinks that like safe spaces are this brand new thing, I got news for you. It's amazing how many people think that nothing bad happened before Twitter. But the safe space training program had a curriculum on religion

and different religious organizations. And the training materials very clearly, and these were training materials that were aimed at students, for example, strongly preferred religious traditions that were more affirming of LGBT sexuality than those that were not. And so the shorthand of this would be

Georgia Tech's official position that it was teaching students was it's better to be Buddhist than Baptist, right? So you had actual instruction from the state preferring one denomination over another, that this is what the state was actually teaching students. And in that case, you know, there wasn't offended observer standing. The problem wasn't, well, I'm offended by this teaching. The issue was much more closely related to the coercion

test that you're talking about. And I think that that's, you're hitting on something really important. What is the distinction between, I just don't like what I see versus this is what the state is actually telling me is true to the exclusion of other traditions and I'm a captive audience. And so that's where I see the individual right aspect of it coming in more clearly to view.

So fun news for everyone. David described this at the beginning, but the Supreme Court has denied cert on this interlocutory appeal, basically. It will now go back to the district court, which found both standing and establishment clause violation on the merits in light of Kennedy. So it'll be interesting to see whether the district court

actually really even reevaluates the standing. On the one hand, they have Gorsuch and Thomas's opinions here they could look at, but those aren't opinions of the court. And the court itself hasn't revisited offended observer status. You can maybe cherry pick some cases out of there and some quotes. Thomas and Gorsuch certainly think that there's enough that you could find otherwise. But I think what's going to happen is the district court will come out about the same. It's the 11th Circuit that will be interesting. And then as Gorsuch says, if this comes back up and they found standing, then by all means, we'll take the case. On the other hand, if they find that there's no Establishment Clause violation,

it's probably less likely that it goes up on just the standing question. You'd have to have the losing side want to appeal this to the Supreme Court, knowing that they're down two votes. It's possible. But David, I think this might be the last we see this case. Yes, I would agree with that.

I don't think we're going to see this case at the Supreme Court again. And I don't think we're going to see this case at the Supreme Court again. And I don't know actually how many offended observer kinds of cases we're going to see at the Supreme Court at all now that Lemon is gone. Right, because again, the standing question is only interesting

if you're then finding establishment clause violations on the merits. That's what's going to get messy about this is we may never get back to the standing question because they're going to keep losing on the merits. That's what's going to get messy about this is we may never get back to the standing question because they're going to keep losing on the merits. Yes, and it is an interesting, it does raise this interesting question as all standing cases do,

which is which constitutional violations, arguable constitutional violations are justiciable because they're not all justiciable. And I brought up the war and peace issue not because it's analogous to this establishment clause issue. It's not. It's far more serious and consequential with far more impact on people's real lives.

So, you know, if you want to talk about concrete and particularized harm, being a member of the 82nd Airborne ordered to fight in an unconstitutional war, it would be some concrete and particularized harm, but it is not resolved through the judicial process, which is a really fascinating aspect of our system. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day

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plus free shipping on their best-selling frame. That's A-U-R-A frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. All right, Next up, we had an order in a pending case that came out after our last episode. This is the Moore v. Harper Independent State Legislative Doctrine case. So I'll read you. The parties and the Solicitor General are directed to file supplemental letter briefs addressing the following question.

What is the effect on this court's jurisdiction under, and it's going to list some things we'll get into in a second, of North Carolina Supreme Court's February 3rd order granting rehearing and any subsequent state proceedings? What does that mean, David? Remember, we talked about the two cases this term that could end up getting digged, kicked, you know, whatever. One was that when states could intervene in the immigration case and it happened again and that got digged. And the other one was this one because the North Carolina Supreme Court was like, JK, we had an election.

We now have a Republican Supreme Court and we'd like a do-over. So we're going to rehear the case, decide it differently, and that will potentially moot out the Supreme Court case. And so what's interesting here is the Supreme Court is not going to decide this just on their own.

They're neither going to dig it nor moot it out. They're going to actually ask the parties, what do you think? Which makes this at least a closer call than I thought. David, there's two things that are interesting about this to me. One, in particular, they're saying, what is the effect on this court's jurisdiction under Cox Broadcasting Corporation versus Cohn? That's a 1975 decision on when the Supreme Court can take

something from a state court, like can get an appeal from a state court that's not final. Right. That's going to be really interesting as, again, we litigate more and more of this stuff. When we talk about interlocutory appeals coming all the time from the federal circuit courts, but coming from a state court, it's supposed to be final. Except, like, except if they really want to uh yeah and so in

that sense now that the north carolina supreme court's taking it back does it retroactively make this interlocutory and we didn't really get into this when we talked about it but even when the north carolina supreme court decided it before there was both sort of the merits decision and the remedial part of how the map was going to work moving forward. And so was it ever final? Okay. But the second part that's really interesting comes from our friend, Will Bode, friend of the pod. He's got a different question to ask. He says, I don't have a strong view about the finality question the court asked about, but I have been puzzled by a prior related jurisdictional question.

Did the North Carolina state courts have jurisdiction to grant rehearing on the merits? I.e., how did they get it back? Once the Supreme Court takes something, they took it. It belongs to, they have the pen. For anyone who's ever written in a group, you know, not everyone's editing at the same time. That would be a mess. So once someone takes it, they have the pen and until they relinquish the pen, you can't edit it. That's sort of the theory of how the Supreme Court works when they grant cert on something. Reading again from Bode, it is a general maxim of federal jurisdiction that a lower court loses jurisdiction of a case

while an appeal is pending. So far as I can tell, this rule isn't entirely mandated by a federal statute. It's just understood to be a consequence of the way appeals work. Similarly, a common law, a writ of certiorari, takes the record out of the custody of the inferior tribunal, leaving nothing there to be prosecuted or enforced by execution, and operates as a stay of execution. If that principle applied in Morby Harper, then the issue would not be whether the Supreme Court has lost jurisdiction over the case, but rather that the state court might lack jurisdiction to take such actions. Is there some reason the principle would not apply? One is that this, you know, the Supreme Court has the pen, doesn't apply to state courts for some reason, he says. Okay. But another is that the Supreme Court, when they took certiorari before,

used to, you know, take the case, whereas now they're only taking these questions presented. And by only taking particular questions, are they then not taking the entire case and as he points out that's not how certiorari worked at common law and so maybe with that change the certiorari jurisdiction principle has changed too i've never heard anybody say this but it's possible and he says a third possibility and i suppose it is the most likely it is uh that it has something to do with what is called the two-track approach in this case. And this is what I was sort of referring to.

This case went on two separate tracks after the original North Carolina Supreme Court decision finding a partisan gerrymander, the elections clause track and the remedy track. And so if they only took one track, then the other track remained down in North Carolina, yada, yada, yada. David, any of this interesting to you?

It is so interesting to me and it totally labels me as the most hopeless nerd in the world. So like there are a few things that will label you as a ridiculous nerd. One is, can you have a heated conversation over whether it was true to Superman that he killed somebody in Man of Steel? Another one is an extremely angry confrontation over the portrayal of Galadriel in Rings of Power

over whether she was too much of a warrior princess. And the third is, does the North Carolina Supreme Court have any remaining jurisdiction over this case? And specifically, if we take this two tracks view of it, which I think I do, that there was the remedy track and the elections clause track, the Supreme Court certainly granted review on the elections clause track.

And that is what the North Carolina Supreme Court has said they're gonna rehear. So what now? Yeah. So for you law students and legal practitioners and people who have a healthy legal practitioner practice in your mind, this is a really interesting sort of 101 situation because when a case is appealed, the case technically doesn't even exist at the lower court anymore. It's gone. It's in another court. And so all of your proceedings regarding that case are in the one court as a general rule. And so therefore, is this even the North Carolina Supreme Court's case

anymore? Or is it only the United States Supreme Court's case? It's as soon as I saw that post, I was like, one, I thought it was fascinating. And two, it told me how rusty I am as a litigator, because that would should have been something that would have been like the first thing to come to my mind back in my heyday Sarah but I I regret regret to tell you I think I'm I'm past my prime on on litigation issue spotting because it was like so clear and obvious and yet nobody was talking about it. There is something that appeals to me, which is his number two point on maybe state courts are different. They are separate sovereigns, the federal system and the state system. And so

regardless of how it works in the federal system, I am for some reason much more sympathetic to the idea that like, no, the state courts can just do whatever they want. And then when I say that out loud, I'm like, no, no, I don't like the state's court doing whatever they want. What? No. Right. Like imagine you have your certioraries granted, opposing briefs are filed, and then you go, you know what?

Man, the opposing side had some really good arguments. Let me go make a motion back at the lower court to see if they can reissue their opinion in a way that's going to respond to some of these glaring issues. No, that's just not the way this goes. It's very interesting, Sarah. It is very interesting. And I have no idea if the court is going to deal with the Wilbo point

at all, but it is super interesting. Alright, now it's opinion hand down! Yay! And the crowd goes wild. Goes wild! Alright, we've got many cases to get through and again

I've already warned you, none of these are the hit parade cases. I know that. You get through. And again, I've already warned you, none of these are the hit parade cases. I know that. You know that. And yet, as you probably know, if you've listened to this podcast last year, I get maybe more excited about these more in the weed cases because I think they're more fun in a lot of ways. So let's get to it.

All right. First up, we've got a Sotomayor opinion joined by Roberts and Kavanaugh with Kagan and Jackson. And then you've got Barrett, Thomas, Alito, and Gorsuch dissenting. Now, this case, David, in particular to me, very interesting because we're going to see a few more lineups that kind of look like this in a variety of ways. And so it's causing me to reevaluate my 3-3-3 court. Remember, this is the idea

that it's not a 6-3 conservative majority. It's more like a 3-3-3 court where you've got two axes. One is conservative to liberal and one is institutional to less institutionalist. And that Gorsuch,uch Alito and Thomas were our no institutionalists and that Kavanaugh and Roberts clearly more institutionalist. And then Barrett, I said, we didn't quite know, but based on sort of her first year, I was putting her in the more institutionalist camp. I think after we've seen now her on the court for a

little bit, I'm starting to edge her over into the less institutionalist camp so that you would actually have something more like a 4-2-3 court, which isn't as quippy and in that sense, deeply disappointing. David, the actual facts in this case are super complicated and not that necessary for us to go into, but let me try very briefly just to give people a flavor. So basically in a case called Simmons, the Supreme Court said that your rights were violated, your due process rights were violated. If a trial court didn't let a defendant who's eligible for the death penalty tell the jury that a life sentence would be without parole. Then the Arizona Supreme Court kind of ignored that for a while. The Supreme Court summarily reversed in a case called Lynch.

And then after that, this guy who was sentenced to death applies for post-conviction relief under a specific Arizona rule of criminal procedure that says that a defendant can bring a successive petition. You know, he's already appealed once and it's been denied, etc. He can bring another if, quote, there has been a significant change in the law that, if applicable to the defendant's case, would probably overturn the defendant's judgment or sentence. His argument was, well, look, the law maybe didn't change because the Supreme Court had already ruled before that you had to allow me to inform the jury that I would be there with life without parole, but the Arizona Supreme Court courts weren't actually enforcing that until Lynch. And so now Lynch has made it really clear.

And that's the change. The Arizona Supreme Court said that Lynch was not a significant change in the law. It was instead verifying something that had already been the case, which put this poor guy in a real catch-22, right? So what the majority was saying was, nope, this was a significant change in the law. You have to let him file his petition again. Okay. So David, the point of this is, on the one hand, you've got the bad man stays in jail is the dissent, right? Those are the dissenting justices. And then you've got the, we should defer to state courts when it comes to their own rules of

criminal procedure. That's also the dissent. So I'm curious if you have thoughts on the merits or the lineup. So I am and am not surprised by the lineup. So here's the am side of it. Your eyebrows always raise when you've got Sotomayor and Barrett and Kavanaugh and Roberts on the same side. That's going to make your eyebrows raise. And then if I see a lineup like that, here's the not surprising part of it. So if someone just said, hey, here's the lineup, Sotomayor, Roberts, Kagan, Kavanaugh, Jackson, then I would say, huh, until somebody

says it's a criminal case. And then I'm going to go, oh, okay. Because in the criminal cases, a lot of the lineups, Sarah, are often quite scrambled. I think I misspoke. I said Barrett was with Sotomayor. It was not. It was Sotomayor, Roberts, Kagan, Kavanaugh, Jackson. And so criminal cases often are quite scrambled. And this is something that a lot of people don't understand.

But if you're an advisory opinions listener, you totally get it. Because a lot of the criminal law cases, when you're talking about, say, for example, an originalist perspective, are often gonna be quite friendly to criminal defendants. I mean, Scalia was known in his originalism often for being quite friendly to criminal defendants,

but death penalty cases generally, criminal cases generally often have surprising lineups. And so that means what you have to do is scratch beneath the surface and sort of figure out, okay, why is this ideologically all up in the air? And with criminal cases, you often have to get deep into the weeds

to realize how these criminal cases play on each judge's jurisprudence. But they're great examples. The criminal law cases, to me, are great examples of how judicial philosophy plays out in ways that are often quite surprising compared to what you might call an ideological axis. Yeah, David, I mean, the facts of this case are kind of messy, and I'm actually really sympathetic to the dissent as Barrett's describing why the state court interpreting its own rule was probably more correct in interpreting its rule. However, from a, like, how to make the world make sense and fair and due process,

the majority certainly has. I mean, it's a true catch 22, like in the original book sense, where the only way to get out of flying the plane is to be crazy. But if you say you're crazy, then you're not crazy, because it's the only you know, it proves you're saying not to want to fly the plane. That's a little bit what this, you know, getting caught between these two precedents from the Supreme Court was if you were an Arizona death penalty guy. All right, next up, David's favorite case, the Bank Secrecy Act case, Bittner versus United States.

The Bank Secrecy Act case, Bittner versus United States. This is kind of cool because it was about when you don't file your report about your foreign bank accounts. Are you punished and inadvertent? Not filer, by the way. Right. Non-willful failure to file your report under the Bank Secrecy Act. Are you fined per report that you failed to file? One report per year. Or are you fined per account that you failed to put into a report under the Bank Secrecy Act, which could be sort of infinite? It's $10,000 per violation,

the violation of the report or the secret bank account. And another interesting lineup, this is Gorsuch. Okay, so it's Gorsuch joined by Jackson in full. Right. And then also joining Gorsuch for most of the opinion, the vast majority of it, is Roberts, Alito, and Kavanaugh.

They're going to join for all the parts except part 2C, which is going to be the lenity part, which is sort of the sexy part to me. Yep. Then you've got Barrett in dissent with Thomas, Sotomayor, and Kagan. So you've divided the liberals,

you've divided the conservatives. David thinks this case is not as cool as I do. But I thought it was pretty cool. So Gorsuch is going to say, nope, it's per report. So if you fail to file for five years, and it's $10,000 per violation, you owe $50,000. And it doesn't matter that you failed to report 10 bank accounts per year for each of those years, which would 10 up your violation if the failure was per bank account and not per report. Barrett and DeSette is going to say, yeah, but the text and the statute as a whole actually makes it per bank account. And then in the part that only Gorsuch and Jackson are going to side on is the rule of validity that, okay, Gorsuch says to the dissent, if you're not sure, fair enough. But then the tie goes to the criminal defendant in

this case. David, wild lineup. And we're gonna, you know, people often ask like, the liberals always vote in lockstep and it's the conservatives who, you know, are actually free thinkers. I wanna challenge people on that. A, that's just not true. As you can see here, the liberals didn't line up altogether.

But the reason that you don't think about them as much is because they rarely change the outcome of an opinion when a liberal justice peels off. And that's not true for the conservative justices when you are thinking about it in that way. And so that's why we're often focusing on the conservative justices peeling off one way or another because it changes the outcome of the case

in a way that this rarely does. But again, this one's pretty cool. Yep. Yeah, it is. And I'm not going to spend much time on the overall merits of the Bank Secrecy Act case because let me just go ahead. Because it's too sexy. Yeah. Well, and also just can I go ahead and give the malpractice alert if I just try to do that. Like, this is not my area. But here's what was interesting to me, and this is where Gorsuch and Jackson were in the mind meld because the majority, the five justices in the majority,

were all together on everything except section 2C. And only Gorsuch and Jackson were together on 2C. So immediately when I read something like that in the lineup, I'm like, the first thing I'm reading is 2C because that's the really interesting part. And this goes to something that we've talked about before, the rule of lenity.

Okay, so here's how 2C begins. To the extent doubt persists at this point about the best reading of the BSA, Bank Secrecy Act, a venerable principle supplies a way to resolve it. Under the rule of lenity, this court has long held statutes imposing penalties are to be construed strictly against the government and in favor of individuals. Following that rule here requires us to favor a per-report approach that would restrain BSA penalties over a per-account theory that would greatly enhance them.

I thought this was really good, Sarah, and I want to see more rule of lenity. And the reason why I want to see more rule of lenity is it flips back to the legislature in a way that I really like what this court has done on a number of fronts, which is to say, do your freaking job, okay? If you want to deprive people of property or liberty, then you better precisely

outline what is prohibited behavior. And if you don't precisely outline what is prohibited behavior, we're going to give you no slack. You get no slack, no slack for you. Um, and, and I like that. I thought that was the most interesting part of the opinion. And my only regret is two of nine joined it. Gorsuch, definitely a fan of Rule of Lenity. We've seen that before. It's going to come up again in that bump stocks case. Remember the Fifth Circuit leans on the Rule of Lenity there in what will almost certainly go up for certiorari here in the next few months. go up for certiorari here in the next few months. You know, another thing that I thought was interesting on the, any time, by the way, that there's a criminal case like this, I expect Gorsuch to be channeling his inner Justice Scalia and side with the criminal defendant if it's remotely a close call. It's part of what made the Cruz lineup, the case we just talked about, interesting to me,

because Gorsuch is in dissent. And that's why I mentioned, sure, bad man stays in jail, but there's also a lot of deference to state courts in that dissent as well, that they should be able to say what their own rules of criminal procedure mean. And when Gorsuch is in dissent on one of those cases, I pay pretty close attention to that because in general, like Justice Scalia, he actually likes letting criminal defendants go. I mean that mostly tongue in cheek. But what I also found interesting on the bad man stays in jail version of this in the dissent with Sotomayor and Kagan is this is a white collar crime. and Kagan is this is a white collar crime. And I do wonder if that changed some of the lineup here, because I'm surprised to see Sotomayor and Kagan not being somewhat moved by the rule of lenity idea. And just to make this, and again, as David said, I mean, malpractice warning in terms of like,

we are not banked. Experts, as you may know. But for instance, for the non-willful violation, it's $10,000 per violation. And we're arguing what the violation is. Is it the report or the number of accounts per report? If it's a willful violation, though, a maximum penalty of either $100,000 or 50% of the balance in the account at the time of the violation, whichever is greater. So if you're playing this game at home, you could end up paying a lot more money if you fail to file your report for five years, but had a whole lot of foreign bank accounts and inadvertently failed to do it. But if you then raise your hand or like, no, no, I meant to do it, but you don't have much money in each of those accounts,

you're better off. That makes no sense. In our system, we punish people who mean to break the law more than we punish people who don't mean to break the law. And in the end, that's where I was won over by the majority. Even though I thought Barrett and DeSent had many good arguments. David, can we do some bankruptcy up next

just to see if anyone's still listening to this podcast? Why, Sarah? Why do you want to destroy our entire audience? Barton, Werfer, B. Buckley. Okay, I like this case and I'll tell you why. Because you know what? It's actually sexy. Like, it's literally sexy.

So this is Barrett with a unanimous opinion. And the case is about what happens when you pick the wrong boyfriend. So, Kate was dating David and they decided to flip a house together. So they purchased this house. They decide to flip it. They're business partners and lovers. And David is in charge of the house flipping. David does a terrible job. They then sell the house at a profit. And it turns out that the house is basically falling apart for our purposes. So the purchaser of the house sues them for,

you know, fraud and all the other things. They file bankruptcy because they don't have the $200,000 in damages that they're sued for. Now, most things are dischargeable in bankruptcy because this, by the way, David, is the philosophy behind bankruptcy, right? You don't want people to be in debtor's prison at some point. And so bankruptcy is there so you can have a fresh start. Your creditors get everything that they can and we wipe the slate clean and you go about your life. Now you're a bankrupt, you filed bankruptcy. And so that may affect your ability to get loans and things like that down the road, but you don't have any more debt except if you're a fraudster. Now everyone agrees that David is the one who committed the

fraud, but Kate was his business partner because she's bad at picking men. And the question is, can she discharge that debt in bankruptcy, even if David can't? And the answer from the unanimous court was, sorry, Kate, no. Rule 523A2A bars the discharge of, quote, any debt for money to the extent obtained by false pretenses, a false representation or actual fraud. Barrett writing for the court says that this is written in passive voice. It turns on how the money was obtained, not who committed the fraud to obtain it. So it's actually about the creditor, if you will, not the debtor who has filed for bankruptcy. Kate owes a lot of money. So does David. Exciting. David hasn't even been listening to me. David's been like watching Netflix. No, false, false. I'm just arranging my tabs. Arranging. For the main event. Fine,

fine. All right. I know everyone's excited for his treatment, but actually I think this Helix case is going to get you more worked up. So we're going to do it first. This was a Kagan opinion and it was a little bit feisty. And you know what? It was feisty at the lower court too.

So this is Kagan joined by Roberts, Thomas, Sotomayor, Barrett, Jackson. Whoa. So just again, I'll put them in an order. It's, you know, Kagan, Sotomayor, and Jackson with Roberts, Thomas, and Barrett. And then the dissent, Gorsuch files a dissenting opinion that we'll get to because it's sort of a, it was a spicy Gorsuch dissent. And then a Kavanaugh dissent on the merits, if you will, with Alito. What in the world lineup is this, David?

What could this topic possibly be, you're wondering? Oh gosh, please tell us. Okay, everyone. Again, for the three of you who are now listening. Yes. Three. You mean somebody else besides the two of us? Husband of the pod just walked through, so maybe he's still listening. Okay. Yes, this is the Fair Labor Standards Act of 1938. But... I just put my head on the desk for those who are not.

Well, nobody's watching. Yes. David, this is dinner table conversation. It really is. This is going to get you going. Just wait for it. Okay. So the question is whether you're owed overtime,

whether you're a salaried employee just because you make a bunch of money. So, and by the way, this is the case, if you remember back in the Fifth Circuit where Judges Ho and Jones went at each other, where Jones accuses Ho of not being a textualist. It got feisty at the Fifth Circuit. And for those keeping score then,

Judge Ho is going to win here at the court. And that means Kavanaugh is on the side of Jones. So, okay. So as I said, sure, it's Fair Labor Standards Act, but all right, so here are the rules for overtime. You generally speaking get overtime when you work more than 40 hours a week. But then of course there's carve outs.

If you work in a bona fide executive, administrative or professional capacity, as those terms are defined, week. But then of course there's carve outs. If you work in a bona fide executive administrative or professional capacity, as those terms are defined, and you are a bona fide executive exempt from overtime, if you are paid on a salary basis. So this guy, Michael Hewitt, worked for Helix Energy Solutions on an offshore oil rig, and he reported to the captain. He oversaw various aspects of the rig's operations and supervised 12 to 14 workers. He worked about 12 hours a day, seven days a week, so 84 hours a week during a 28-day hitch. He then had 28 days off before reporting back. His daily rate

pay was between $963 and $1,300. He got paid every two weeks, and he only gets paid for the days he works. So if Hewitt worked only one day, his paycheck would be $963. But if he worked all 14 days, it would come to $13,000. Generally, he got paid $200,000 annually, David. So is he a salaried employee or is he entitled to overtime this got super interesting because the you know everyone's like well two hundred thousand dollars that's like clearly a lot of

money but the regulations don't care really asterisk how much you make it's about whether you're paid on a daily basis or a weekly basis or a yearly basis, etc. And they're saying, look, he's clearly paid on a daily basis and he has a daily rate. So he's entitled to overtime. Now, the dissent with Kavanaugh and Alito are going to push back and say, yes, but part of the regulation says that even if you're paid on a daily basis, as long as you're guaranteed a weekly amount for any work, any week that you work, a minimum of $450, that's another type of exemption. And of course, in this case, if he works only one day in that week, he's paid $963, which is more than 450. So that's the Kavanaugh-Alito argument,

which is pretty persuasive, except that he still definitely paid a daily rate. It's not that he was guaranteed a weekly salary. Anyway, that gets kind of messy. But this is what got pretty interesting is the Gorsuch dissent. Adam just quit the podcast. Yeah, he definitely did. As I'm scrolling. Okay, here's Gorsuch. The court granted certiorari to answer this question.

Whether a supervisor making over $200,000 each year is entitled to overtime pay because the standalone regulatory exemption set forth in, set forth in this regulation remain subject to the detailed requirements of this other regulation when determining whether highly compensated supervisors are exempt from the Fair Labor Standards Act overtime and pay requirements. In other words, we agreed to decide which regulations certain well-paid employees must satisfy to fit within the overtime pay exemption. Must they satisfy only 601 or must they satisfy 601 and 604? Unfortunately, this case does not tee up that issue in the way we hoped. With the benefit of briefing and argument, it has become clear

that the critical question here is not how those two interact. Instead, it's an antecedent one, whether Helix Energy paid Michael Hewitt, the supervisor at issue in the case, on a salary basis. As the court explains, the proper interaction matters only if they paid him on a salary basis, you know, consistent with all this other stuff.

Nevertheless, the court is deciding this case. I would dismiss this case as improvidently granted. David, Gorsuch appears to be a little annoyed that he was misled at the certiorari stage as to what case he was taking here. And he is refusing to play at all and is taking his ball and going home. So anyway, that's all to say that this dude

gets his overtime pay, his back pay for overtime. But I got to say, moving forward, I don't know that this is going to do much for people because all of these organizations are simply going to change the way they pay people because there's no way they're paying them overtime because especially in oil rigs, I mean, talk about a market system for pay.

Yeah. There's a reason these guys are getting paid $200,000 a year. It's hard work. It's dangerous work. It's a lot of hours. But the idea that he's basically going to make, I'm not going to do the math sitting right here, but 30% more than that.

No, because that's not what the market bears for this sort of work. So he'll get his windfall and nobody else is going to benefit from this. Everyone else, the hammer will come down. So yeah. Now, do we have one more case or do we want to just-

Achievements! Achievement. Oh, yes. Now, is this the thing everyone's been waiting for or is it the Murdahl murders? Look, this is the case about MoneyGram and Delaware snapping up all of this money from all the other states.

It was an original jurisdiction case. Jackson delivers for a unanimous court with respect to most of it. And with the part that some of the other folks didn't join, it's Roberts, Sotomayor, Kagan, and Kavanaugh. So again, that 4-2-3 lineup where you've got a 5-4 decision for that one part. But David, come on.

This was a fun case. Delaware's trying to take everyone's money. True. This was the case that led us to realize the magnitude of the awesomeness of our readers because this was the case that led to the, a statewide director of escheatment, lost property,

whatever to write into us with this incredibly phenomenal explanation of what this case was about. And I was like, we have absolutely the best listeners ever because we're, we're even getting heads of state agencies writing in on obscure matters. And when I say obscure, no disrespect intended whatsoever.

Let me just say less famous matters of law, less famous. So by the way, part 4B, the part that was the 5-4 decision was on legislative history. Fascinating that Roberts and Kavanaugh joined that because I think it fits really well into my two axes, institutionalist versus non-institutionalist. Institutionalists are going to be more likely to give weight to legislative history in a way that non-institutionalists are going to say, nope, text is the text, don't care, fingers and ears, la, la, la, la, la, la, la. It doesn't matter who wins, who loses, what's

reasonable, what's going to create chaos. I mean, it's like Gorsuch in a bottle, right, is my non-institutionalist. And this is my institutionalist opinion. So I'm going to keep this one in my pocket. And for those who are wondering, because I didn't actually say, Delaware loses. They lose, they lose, a thousand times they lose. We all knew they were going to lose. It's unanimous. The other 49 states get their money. Yeah, one state does not get all the money. All right, we have one more, which is Jackson and Sotomayor dissenting from a denial of certiorari. And David, I just thought this was interesting because when we think about the right to counsel, what's going to come up in like so many cases that we're never going to talk about

because they die at the circuit level is the ineffective assistance of counsel cases. I mean, there's a zillion of them. They make up, I would say, a majority of the criminal law docket for a lot of circuits. And they're all meritless, pretty much. Not all, that's not fair. But it really is sort of this appeal of last resort. My lawyer was bad. And if I'd had a better lawyer, I wouldn't have lost. And the problem is, they're probably right in a lot of cases. But to meet that ineffective assistance of counsel bar, it's just incredibly high. I mean, we've seen the cases before, right? If there's any strategic reason that a lawyer might have done or not done something, then it's not ineffective. It has to sort of be way outside the realm of reasonableness. So this case is fun because it's about within plea bargains.

Again, something that we don't get to a lot because, you know, the vast majority of criminal cases are going to plead out. And then it's really hard to argue that you had ineffective assistance of counsel. And so in this case, which is the 11th Circuit, they say that basically you can't have ineffective assistance of counsel when it comes to a plea deal if you were never offered the plea. And here you have Jackson and Sotomayor saying that shouldn't be a bright line rule because, and I was like, what are you guys talking about? If they didn't even make a plea offer, how could you possibly have had ineffective assistance of counsel? Except the facts of this case are that this dude's five co-defendants all got plea deals

with respect to the exact same series of armed robberies. And while Davis, our dude for this case, was 18 or 19 years old at the time of the crimes. He received a sentence of approximately 160 years of imprisonment after his attorney took him to trial. All of the co-defendants received sentences of less than 40 years of imprisonment due to a plea agreement that enabled the district court to impose a sentence below the mandatory minimum. The district court's statements at sentencing were also noteworthy. The judge specifically asserted that while he thought the appropriate sentence for David was 40 years, he was bound by the consecutive mandatory minimums. I was kind of persuaded by this, David, that perhaps having a bright line

rule about ineffective assistance counsel at the plea bargaining stage is unhelpful when the facts are exactly the worst case scenario facts. Right. Six guys commit the crime. Five have lawyers that get them a plea deal. The six guys lawyer never calls, never gets a plea offer. And therefore, by the circuit precedent, he can't argue ineffective assistance of counsel.

Woof. Yeah. So he gets 20 years more. That's terrible representation and i guess the question is when you know when is terrible representation a constitutional ineffective assistance of council violation because we're not in a situation where everyone is entitled to excellence because excellence is relatively rare when does incompetence become a violation of your constitutional rights there's a fascinating underlying question here and it seems as in an arena where representation

and types of representation are almost infinitely varied in the way that lawyers approach cases and the kinds of strategic decisions that are made that it lends itself to, lest you're second-guessing lawyers every second of the day, it's going to lend itself to some bright line rules,

but then the bright line rules are not going to capture every kind of grotesque incompetence. Yikes. And I'm not saying this guy gets off or that he has ineffective assistance of counsel. I would need a zillion more facts, but I was persuaded that the bright line rule

is over-inclusive in this case. That I want to know now, is there a reason the lawyer didn't pick up the phone to see if there was a plea deal to be had? Did he know about the plea deal for the other defendants, et cetera? And honestly, the answer very easily could be, yeah, we knew all of that and decided to take our chances at trial and we lost. Yep. Then it's not an effective assistance of counsel. That's a strategic decision. No problem. Yeah, exactly. Took a risk, risk didn't pay off. That's not an effective assistance of counsel. Yeah. although this gets to a whole other thing on the trial penalty right should you be

penalized basically for going to trial when you were offered a plea deal and turned it down because what you the reason that i forget what the number is now 97 of criminal cases get pled out is because the plea deal is nearly coercive at some point. Right, right. And there is a penalty. There's not supposed to be. But as you saw in this case, right, he went to trial and loss. So he was subject to mandatory minimums that got him 60 years. The plea deal would have knocked down some of what created the mandatory minimums. Thereby, he would have gotten 40 years. That is a trial penalty. I don't know how you fix it, but it's a real problem right now in our system. And if we got rid of it and said no more plea deals,

we wouldn't have a criminal justice system because we do not have the capacity to take those other 97% of cases to trial. Yeah. I mean, the real issue with the coercive plea bargaining is it literally makes it rational at times for an innocent person to plead guilty. For sure. Yeah. Yeah.

Which is a terrifying thing that you have a system that says an innocent person would be better served spending time in prison and acknowledging a crime they didn't commit than by contesting the crime. And I'm not saying that happens very much. It does not happen as an absolute percentage of cases very much. But it is still, that is a problem. Yeah, I mean, look, you talk to defense attorneys or prosecutors, they're going to tell you the vast majority of the cases, it's not guilt or innocence. It's how much guilt, if you will. You know, if they went to trial, would they get that charge knocked down? You know, the jury would find them not guilty on that one, but guilty on that one, you know, etc. And like, it gets,

it gets really messy. It's really disheartening. I know for a lot of defense attorneys. And frankly, I think it's disheartening for a lot of prosecutors who everyone went into this to do trials and to wear white hats for their side. It's hard, I think, to feel at the end of the day that you're the white hat in a system like this. But thank you to all the prosecutors and defense attorneys out there, especially the federal public defenders and state public defenders who do this work. You're doing God's work. Thank you. We appreciate you. Speaking of criminal trials, David. Oh, goodness. The Murdoch murders. Murdoch. Murdoch murders. Yes. Yeah. So he is found guilty to consecutive life sentences for killing his wife and son, 22-year-old son. But you sent me a op-ed.

Yes. Why Alex Murdoch's Quick Conviction Worries Me was the title of it. And I was wondering if you could discuss it. Yeah, so this is a case we've talked about a little bit before and it's the subject of an HBO documentary. It's the subject of a Netflix documentary. I'm sure it's only a matter of time

before it's the subject of a movie. It's a wild case. And the whole thing, I can't describe the entire multi-part documentaries, but essentially what you have is a very powerful small town family, a string of murders or suspicious deaths culminating in the death of Alex Murdoch's wife and son, and he's accused of killing the wife and son at like their hunting lodge retreat. And he was convicted really quickly,

just I believe after about three hours of deliberation after a week's long trial. And what made this curious is that this was a trial that was almost entirely built around circumstantial evidence. Now, when you say circumstantial evidence, a lot of people may think that means, well, something about circumstantial evidence means a lesser form of evidence that doesn't necessarily mean lesser form of evidence. It just means that there was no, for example, no eyewitness who

watched him shoot his family members allegedly. And so what was the case built around? The case was built around a combination of electronic, a lot of evidence from cell phones. So specifically location and step counts. So where was somebody, where was Murdoch at specific times? How many steps was he taking? Did it match with his accounts?

Also, there was a Snapchat video that revealed that he was there at the scene of the crime at a time when he said he wasn't at the scene of the crime. And so there was a lot of evidence that cast doubt on his alibi or on his story. But still, at the end of the day, they don't have the murder weapons.

They didn't have eyewitness accounts of the murder. And the motive, Sarah, to me, never made a ton of sense. Motive makes no sense. Motive makes no sense to me, which the motive was, his alleged motive was to kill his family members to distract attention from his financial crimes when the financial crimes were highlighting his financial crimes

were a big part of his trial. And so the murders actually brought more attention to his financial crimes. And so essentially what you had was a situation where he was caught in a bunch of lies. His alibi kind of fell apart, but there really wasn't direct evidence that he wasn't, there wasn't the kind of blood spatter evidence

that you might think of. There wasn't a murder weapon. There weren't the fingerprints on the murder weapon. There wasn't eyewitness testimony. It was much more all of the tech indicates he was there when they died. And so therefore that, you know, that the Times op-ed, which we can put into the chat, was, wait a minute, how do you get three hours of deliberation out of six weeks of testimony with circumstantial evidence only, with a weird motive that doesn't make any sense? I thought it was a pretty thought-provoking piece, Sarah.

I don't know. I'm very curious as to your thoughts. In a different case, it would be a very thought-provoking piece. Okay, now tell me why in a different case. I am very sympathetic to the idea that we are just starting to use all of this basically self-surveillance that we have from carrying our

devices with us at all times in criminal trials. However, that is not why the jury only took three hours is because they were like, oh yeah, but their phones weren't unlocked after 9 p.m. So we're pretty sure they were killed in this 10 minute window and we know he was there. 9 p.m., so we're pretty sure they were killed in this 10-minute window, and we know he was there. He was convicted in three hours because at every step of the way, he kept lying and then admitting he was lying, and then he took the stand, and it was a disaster. And look, he had to take the stand, in my opinion. Not had to. I understand why he took the stand. It was a Hail Mary move. It was unlikely to work and it didn't work. Right. But nevertheless, they convicted him for that. It was all the other stuff. I actually

think that in this case, the jury didn't so much care about the steps and the unlocking phone. I think it was far more about him saying he wasn't there, number one. And number two, his son having a Snapchat video with him in it that he clearly didn't know about or else he wouldn't have had that alibi in the first place. And that was enough. And while his motive makes no sense, neither, like, of course it doesn't because everything about this guy makes no sense and all these other suspicious murders sorry all of these other suspicious deaths were greed and you have this family that's kind of running this town and so yeah i mean look it doesn't make sense but one can imagine that you okay, I'm a rat who's been cornered. My financial crimes

are about to come to life and my life as I know it is going to crumble. If my wife and son were about to die, then people would feel really sorry for me. And it could buy me time to fix some of this. And by the way, I'm super high on opioids. Right. I am super baked right now. Yeah. So sure, he didn't think through the fact that it would create more scrutiny on his finances. That's not proof of innocence to me. That's proof of stupid.

Yeah. And the other, that's sort of the counter, the other idea, which was that there were some vigilantes who had killed his son and wife because his son was involved in a fatal boat crash where a young girl died. I mean, this story is just beyond imagination. And the idea that there might be vigilantes

that would go after his son was also a little too close to a previous argument. You know, he had previously had a self-inflicted or he hired somebody to kill him and the person didn't succeed. And it's just a mess. Like it's just an unbelievable mess. Except he didn't hire the person

to kill him he hired the person to pretend to kill him hired the person was he hired to pretend to kill him or was he hired to kill him and he missed and then he blamed it on a a robbery gone awry. It's a mess. It's a mess. So, yeah, I think that you're exactly right that his lies are what did him in more than anything else. And in a way, it doesn't surprise me, this sort of idea that he took the stand and A, it doesn't surprise me he took the stand and B, it doesn't surprise me it was a disaster.

A, it doesn't surprise me they took a disaster. A, it doesn't surprise me they took the stand, not just because of a Hail Mary, but a lot of lawyers tend to have a pretty high estimation of their ability to persuade people. Yeah, which is weird, honestly. But look, the op-eds point on the sort of, again, the phone steps and all of that not being as reliable as we think it is, And the jury should have spent more time on that in a different case where you didn't have all of this other stuff. I absolutely agree with that. And I also think the defense counsel would have been able to poke more holes in it in a different case where you didn't have to poke holes in everything. I mean, it was

just a wall of lies and deception and financial crimes and a history of weird stuff and and then he's admitting to lying i mean the step count was just not really i think part of the deliberation right i think it was a snapchat story the snap this the step counts were maybe not even icing on the cake but like some of the chocolate sprinkles on top of the icing on the cake. Yeah, no, I'm with you. I'm with you. But it is really interesting. The amount of interest in this case has been off the charts. Yeah, because when you kill your own son, we've got questions. Who does that? What drives someone to do that? And the the motive as you said like

isn't satisfying to anyone right it makes you weren't trying you didn't think killing your son would let you get away with your crimes you thought it would buy you time and you thought that was worth your own son's life uh it's wow it's stunning like it's just absolutely stunning okay speaking of stunning should we wrap up with like just 90 seconds on the strangest grand juror in the United States of America? Oh, this poor woman. So, right.

This is the jury, grand jury for woman in that Fulton County case looking at violations of Georgia election law related to the aftermath of the 2020 election, including Giuliani, Sidney Powell, Donald Trump, all the characters in the play. And you and I have talked about the report and that, you know, the judge ordered the release of the report. The prosecutor objected and said indictments are imminent. Give us time they weren't that eminent so the judge released part of the report the indictments still aren't out but then part of

the reports out that didn't really say anything at all and so then we get the jury forewoman doing the rounds on cable news and it was a disaster um it was a disaster the question is whether it's a legal disaster for the prosecution i will say i am just very uncomfortable david with our tear down culture i get it this woman voluntarily did all this to herself yeah but the the joy and glee that people got mocking her and the media then benefiting from her being on tv knowing that she shouldn't be there she didn't really understand what would happen to her um i don't know what you do about it but it makes me really really uncomfortable that we're all sort of these sophisticated media actors. And then occasionally we prank a normal person by letting them ruin their own lives.

Yeah. No, I'm glad you said that. And you made me immediately feel guilty because I just cast dispersions on her. People were going through her Instagram and saying, you know, every time she talked about witchcraft and look, she's 30 years old and she likes witchcraft or whatever else she likes.

Sure. And again, I get that she voluntarily did this. I really do. But voluntarily wanting to be on TV is different, I think, than knowing what's about to happen to you, which any of us could have told her. Yeah.

But it doesn't mean she understood that. Now, again, this is all very separate from the legal problems. It was obvious that she was trying to not say what she wasn't supposed to say. She went on TV and she tried not to say wrong things, but she should not have gone on TV. And so part of this is, and maybe this didn't cross anyone's mind to sort of say it will be an absolute disaster

on every level if you seek out media attention. Do not seek out media attention. If you seek out media attention, it will not go well. It won't go well for you. I don't care how charismatic or interesting or intelligent you think you are. This is not, don't, just don't do it. There's zero, zero upside to going on television here. Now, the question on the case is,

I don't think there's any real legal ramifications yet, depending on what else might be said. We have not seen the report. We have not seen the substance of the report. What she says about the case, and so far she's been very vague. Things like no one will be surprised, things like that.

There'll be more than 12 indictments. Yeah. But David, there's two things she said that I think are problems. Okay, yeah. I don't think at this point that they are catastrophic case-ending problems, but yes, you're right.

Being super vague and giggly and dumb looking on TV and how excited you are to be there is bad for you, but it's not bad for the case. However, she talked about internal jury deliberations, and in particular, other jurors, not her, reading news accounts. It's hard to pierce jury deliberations, even harder to pierce grand jury deliberations, but that's going to come pretty close to allowing defense counsel to do so potentially. Now, again, the difference between a jury and a grand jury here is going to be relevant

because we're just talking about the very low bar to bring indictments. In theory, you could just have a different grand jury, bring the same indictments, keep moving forward. And the real thing, David, though, was her talking about the ice cream party that the prosecutor threw for them. Yeah. What? Yeah. Huh? Yeah. That could be a real problem. And again, what happens from here

is that you just have to redo the grand jury potentially, or I mean, I guess in the biggest version of this, the prosecutor could get sanctioned for misconduct or something. But I think that's unlikely. This isn't like a criminal jury where you could actually have double jeopardy apply, for instance, in something like that. That's not what's going to happen here. But I think those were two big problems in her little media tour.

I would agree with you on both counts. The only mitigating factor is the special grand jury can't actually issue indictments. So- Right, so then what's the actual remedy? Yeah. Right, right. So these are recommendations

that the prosecutor is not required to follow in any way, shape or form. The member of the grand jury who is saying there are multiple indictments, that all they mean is there's multiple recommendations, is saying there are multiple indictments, that all they mean is there's multiple recommendations, not that there are multiple indictments. And then we're going to ultimately see the report itself, and it's going to have evidence in it.

It's going to have documents in it, likely, that provide some sort of roadmap. But yeah, this is a little bit different in that this is not a grand jury that is indicting anybody. It's a grand jury that's issuing recommendations, that's reviewed facts and issuing recommendations. But I agree with you. The ice cream party, yikes. Letting in, talking about some deliberations, yikes.

Going on television at all, yikes. And it just goes back to, you know, goodness. Donald Trump has been, in many ways, quite fortunate. At every turn. Some of the people who've been arrayed in either against him or investigating him, it's been remarkable. Michael Avenatti, anyone?

Oh my gosh. I mean, yeah, exactly. Exactly. All right. With that, in our long pod, we got through most. We still have several circuit opinions that we will talk about

at the University of Kentucky Law School next episode. And again, next week, we'll be switching platforms. So hopefully you won't even notice. But just in case you do, please don't send us a thousand emails about the glitches.

Adam is all over it. And Adam, our most patient producer, we don't thank him enough or recognize how miserable we are in doing this spot. Thank you, Adam. Okay, here we go.