Advisory Opinions - Supreme Court Rules in Double Jeopardy Case

Episode Date: June 14, 2022

David and Sarah give a rundown of two Supreme Court opinions this week: Shinn v. Ramirez and Denezpi v. United States. They discuss an interesting phenomenon called stochastic terrorism as they cover the attempted murder of Supreme Court Justice Brett Kavanaugh. The gun safety legislative package reached bipartisan compromises in the Senate, but will the House be a bigger hurdle? Our hosts think so.   Show Notes: -Shinn v. Ramirez -Denezpi v. United States -Strickland v. Washington -AEDPA Act of 1966 -French Press: "There Is No Right Person to Hate" Learn more about your ad choices. Visit megaphone.fm/adchoices

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I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger. And we have a lot to talk about today, but not one of the cases is one of the big ones. Even though the Supreme Court put out so many opinions today that we had to delay the start of the podcast taping, waiting for each opinion to come out, waiting to see if it's going to have that R number beside it on the Supreme Court website saying it was the last one. But yeah, it was a firehose of cases, Sarah. And how many of them are interesting? I like one and a half. One and a half.

Yeah. So do we want to do the rundown and then we'll talk about the one that's interesting? Then we've got a death penalty case to talk about that's overdue. We've got some law to talk about regarding the Justice Kavanaugh assassination attempt. to talk about some of the interesting aspects of the bipartisan gun control compromise announced yesterday. So Sarah, give us a little bit of a rundown on the uninteresting cases that were decided today. Okay. So these three cases all fall into the half, meaning like they're not not interesting they're just um whatever 0.5 divided by three is uh first two immigration cases one on whether you can hold an alien without a bond hearing uh even after six months the court said, that was an interesting lineup case more than anything else. Lineup on that case, Sotomayor writing Roberts, Thomas, Alito, Kagan, Gorsuch, Kavanaugh, Barrett, Thomas concurring with Gorsuch and Breyer concurring and dissenting. with Gorsuch and Breyer concurring and dissenting. So an interesting case, again, especially to have Sotomayor write something that is against her probably preferred policy outcome. And so I do

like highlighting that as potentially interesting. Second immigration case, this one about whether the INA, the Immigration Act passed by Congress, deprives the district court of jurisdiction to entertain respondents' request for class-wide injunctive relief. Yep, again, this one did not have an interesting lineup. It was Alito, Roberts, Thomas, Gorsuch, Kavanaugh, Barrett, Sotomayor concurring and dissenting, Kagan joining part of that, and Breyer joining that. So that one, more of the usual these days. Next up, on my three that are splitting the half interesting,

this one is on the statute of limitations on a motion cognizable under rule 60b one and you're being so generous on interesting i just want to say that but please proceed and listeners please keep listening all right well basically, this was kind of cool because they said that a judge's mistake could be included as a mistake under Rule 60B. And they went into like all of the history of Rule 60B. And for those wondering about Rule 60B, that is from the rules of civil procedure about relief from a judgment of order where there has been some sort of mistake, inadvertent surprise, excusable neglect, et cetera. So to say like the error was the judges.

Yeah. I mean, maybe I'm being generous on what's interesting in these cases. Then we've got the one that we'll get yelled at for saying it's not interesting. Held only a governmental or intergovernmental adjudicative body constitutes a, quote, foreign or international tribunal under 28 U.S.C. 1782, and the bodies at issue in these cases do not qualify. Sorry. Yeah, that's just a hard pass for me. And then, David, we have the one case we're going to talk about. and then David, we have the one case we're going to talk about. Yes. But just to say, just one, put one pin in Zia. Oh, good old ZF automotive, you know, a case that nobody's, we've not talked one second about it was, I will say this one.

I had one 10th of one eyebrow raise at this one, because it is interesting in the sense that international, what it essentially is saying that is if you're in an international arbitration proceeding, in other words, you're saying a George, a Germany arbitration proceeding or you're in this other case was the Lithuanian bank and a Russian investors arbitration proceeding and ad hoc arbitration proceeding that you cannot then go into the United States and use the statute that orders that you cannot then go into the United States and use the statute that orders, that allows someone to order the production of evidence for use in a foreign or international tribunal. So let's say you're involved in a lawsuit overseas. You could, under this statute, go into American court and get an order from an American court requiring, say, production of documents in discovery. Here they're saying arbitration just doesn't count. It does not count. And so this is interesting because we've seen some body blows dealt to the arbitration regime. And this is another kind of body blow to the arbitration regime,

this time foreign arbitration. So that's a little, I thought that was going to be your point five, Sarah. We will hear again and again from the actual litigation bar that these arbitration cases are the most interesting because they will actually have the most effect on civil litigation companies and even people sometimes. Unfortunately,

I have not conjured the ability to care. Fair enough. Fair enough. I mean, on the other hand, I think there's a good chance that on Wednesday we go back and revisit that Rule 60B judicial error case because of the Gorsuch dissent. So, ha, put a pin in that one. Yeah, absolutely. Absolutely. So let me let's let's go to the interesting one. And the interesting one is legit interesting, Sarah. Like this is legit interesting sarah like this is legit interesting and i'll i'll

set up the facts here um and and what matters here is there's sort of the the legal background that really matters and then there is there's the facts here that really i, my theory is the facts really matter here. And so essentially what's at issue, and gosh, just, I'm going to give my standard warning, Sarah, whenever we start to dive into Indian law, that I fully recognize that this is a convoluted, hyper-complex area of law with a unique and complicated history and so this is my um this is my standard malpractice warning but here i'll give you some some very basic uh some very basic background this let's go all the way back to 1882 um Going back to 1882, the Secretary of the Interior, a man by the name of H.M. Teller,

wrote to his department's Office of Indian Affairs, now known as the Bureau of Indian Affairs, to suggest that the office formulate certain rules for the government of the Indians on the reservations. What happened as a result of that order

was the establishment of courts of indian offenses that were established for nearly every indian tribe or group of indian tribes to adjudicate rule violations on their territory these are now given that the these uh courts were established by or the the existence of these courts was established and published in the Code of Federal Regulations. That's the incredibly voluminous, these incredibly voluminous tomes that lay out all federal regulations in the U.S. He said they're called CFR courts. He said they're called CFR courts. So most Indian tribes have replaced the CFR courts with their own courts.

So they have, the CFR courts have been set aside. They don't exist anymore. Instead, you have tribal courts. But there are some, a very small number, about 16 out of 500, that still continue to operate these CFR courts. And these CFR courts are different from tribal courts because they're established by the federal government. They're established in the Code of Federal Regulations. These are federal courts established under federal sovereignty. Okay, so that's going to be an important factor here. Now, here are the facts.

And the facts here is that you had a man named Merle Dinespy. I'm just guessing at the pronunciation. Dinespy and a victim in the case who just goes by the initials V.Y. Dinespy and V.Y. traveled to Tawak, I don't know, I give up. Listeners tell me how it's pronounced. Tawak, Colorado. It's within the Ute Mountain Ute Reservation. While the two were alone at a house belonging to Dinesby's friends, Dinesby barricaded the door, threatened VY, forced her to have sex with him. After Dinesbyby's friends, Dineshby barricaded the door, threatened V.Y., and forced her to have sex with him. After Dineshby fell asleep, V.Y. escaped from the house and reported Dineshby to tribal authorities. Now, Sarah, here's what I think is going to be really important to the outcome of

this case, and you tell me if you think that I'm wrong. All right. An officer with the Federal Bureau of Indian Affairs filed a criminal complaint in CFR court. So this is the court established back in the 1880s that has not been displaced by tribal courts established under federal law. That complaint charged Dinesh B. with three crimes, assault and battery, terroristic threats, and false imprisonment. He pleaded guilty to assault and battery, and the prosecutor dismissed the other charges. The magistrate sentenced Dinesh B. to time served 140 days imprisonment. So he's allegedly forced himself on somebody.

She escapes afterwards, and he is receiving time served 140 days. Time served, 140 days. Six months later, a federal grand jury in the District of Colorado indicted Dinesh B. on one count of aggravated sexual abuse in Indian country. Dinesh B. moved to dismiss the indictment. That motion was denied. After he was convicted, Dinesh B. was sentenced to 360 months imprisonment. 30 years. Okay.

Now, the question is and was, is that double jeopardy? He was prosecuted twice by federal tribunals for the same underlying set of facts, different crimes, but the same underlying set of facts. Is that double jeopardy? And Sarah, what say you about this? And do you agree with me that that massive gap between time served in his assault and battery guilty plea and the 30 years of imprisonment for aggravated sexual abuse

might have come into play in the outcome of this case? A hundred percent. This to me is a bad facts make bad law case. And that if the original sentence had been anywhere near what we would think of as justice for a rape case,

I think this case could have turned out quite differently. Unfortunately, the bad facts make bad law maxim is going to apply most often in criminal cases because generally speaking, they're all going to be bad facts. Someone did something wrong, and then you're deciding whether the law can punish them or not. And we're all like, yeah, they should be punished. They did something really, really wrong in this case. Rape. Yeah. However, the lineup of this case is incredibly interesting, but not surprising. Yeah. Shouldn't be surprising at all to anyone. So let's go through it. Barrett is writing the majority opinion. Roberts, Thomas, Breyer, Alito, Kavanaugh. Then Gorsuch dissenting in which Sotomayor and Kagan joined most of it.

So it's a 6-3 opinion, but we've got some change of characters in the 6-3 lineup, which is interesting because in the stat pack that SCOTUS blog puts together at the end, it shows you how many cases came out with which just number lineup. And so put a little asterisk because sometimes 6-3 isn't going to mean what you think it means.

Now, the reason I say it's interesting but not surprising is because Breyer, generally not the criminal defense bars friend Gorsuch always the criminal defense bars friend um and Gorsuch does not disappoint in this opinion I just think he is spot the f on as I say um all right So the question is going to turn for Barrett, not on the double jeopardy clause. You can't be tried for the same offense twice. And so she's going to really focus on the word offense. And she's going to say that is about the criminal statute. And in this case,

we have two different sovereigns who have done these. One is a tribal crime and one is a federal crime. Therefore, the dual sovereign doctrine makes that two different crimes and therefore it's not the same offense. The dual sovereign doctrine is why, for instance, you could be tried by the feds and the state for the same crime. Right. Something, you know, for instance, I think back to the Slager case in South Carolina, a police officer who shoots someone in the back. It is a mistrial at the state level. The feds take up the case and he pleads out immediately. Smart man.

That was not double jeopardy. That was dual sovereigns well-established. This is trickier. So she's saying it doesn't matter that it was prosecuted in both cases by the federal United States federal government, not a tribal court, because it was different sovereigns offenses. And Gorsuch is like, look, I actually don't even think that works, And Gorsuch is like, look, I actually don't even think that works, but fine. Let's go with your definition. And this still wasn't different sovereigns offenses because the tribal offense was actually a federal regulation.

They took a tribal offense and it was accepted by the federal government as a federal basically offense. That's why it was tried by federal prosecutors. And important, by the way, as you're listening to this, you're probably wondering, so wait, if you commit, let's say, you assault someone while robbing them, how many different ways can you be tried for that? And the answer is it's actually pretty complicated. So you can be tried by the state and federal government as long as it's a state and federal crime. Let's say you assaulted and robbed a postman or something so that it's both a state and federal crime,

in my weird little hypo. You cannot, though, be tried by, for instance, the federal government successively for lesser included offenses, for instance. So assault in one trial and battery in another trial. But robbery and assault are not part of the same offense. So that would not necessarily invoke double jeopardy, but then it's all part of the same event. So that would not necessarily invoke double jeopardy, but then it's all part of the same event. I mean, that's why this double jeopardy stuff is not as easy as it sounds. It's not just like often one crime, one statutory problem, one trial, and we're done. Usually a lot of different things you can charge someone with. So here, Gorsuch making the argument that it's not just, he agrees with Barrett, perhaps, that it's not just about who tries the case. That is not in the text of the

double jeopardy clause, who prosecutes the case, perhaps. But the offense, the word offense is in there. And if both offenses are defined and codified by the federal government, you can't get tried by the Department of the Interior for Department of Interior offenses in one trial and then tried by the Department of Justice for Department of Justice offenses in the next trial. That offends double jeopardy. I will tell you, David, I find myself a little bit baffled that Gorsuch could not get two more votes for this opinion. I agree. I mean, this, uh, I, I completely agree with you, Sarah. I was reading, I read the majority and I read the, the, the dissent and I went, I jumped back and I jumped back again. And Gorsuch's logic seems pretty darn good.

And, but can I just say one other thing about Gorsuch that connects with something that we said earlier, which Gorsuch's view of precedent, he's sort of like honey badger, you know, honey badger don't care. He starts in his very first paragraph of his concurrence, to justify its conclusion, the court invokes the dual sovereignty doctrine. For reasons I've offered previously, I believe the doctrine is at odds with the text and original meaning of the constitution.

So he's just saying, I would throw out dual sovereignty. Let me just get that as a throat clearer. Let me just say, I would toss this whole line of precedent. But even taking it at face value, the doctrine cannot sustain the court's conclusion, which is a compelling part of his opinion. But yeah, as I was reading it, you know, here you have a department event. You have the federal government prosecuting Biden at the apple number one, federal government prosecuting again, Biden at the apple number two, over the exact same set of facts. It feels to me like you're twisting yourself into a pretzel to state that double jeopardy

doesn't apply under any reasonable meaning of the term double jeopardy. But I fully recognize that that initial sentence seems almost shockingly light. Except that's exactly why we have the double jeopardy clause, so that you can't do one trial, not like the sentence, decide later that you thought it was unjust and you should have tried them for more, and then just go do that. This is the exact thing. But also, I mean, David, to your malpractice warning at the beginning, we're going to have a few of these tribal cases this term where this is getting all very messy. It's getting messy in Oklahoma on criminal law. This is Colorado, but it's getting messy on double jeopardy. This would not have been an issue if he had simply been tried by one federal prosecutor

out of DOJ and that federal prosecutor undercharged, got a crappy sentence, and then another better federal prosecutor came along and was like, wait, I can do better than that. That would clearly violate double jeopardy. The only thing that makes this even remotely plausible is the tribal aspect to it. And I just, I don't know that, how much longer is this gonna go on? And Gorsuch just calls this out. I mean, here's what he says.

After further consideration, it seems federal authorities may have regretted their hasty prosecution. It seems, too, they may have considered the punishment authorized by tribal law and their own regulations insufficient. You think? Six months after Mr. Dinesby finished his Interior Department sentence, the Justice Department brought new charges against him for the same offenses under federal statutory law. And the new charges carried the potential for a much longer sentence, when unconnected to tribal judgments about the appropriate punishments for tribal members. I mean, he just lays it out right there. But it's fascinating because Barrett is

trying to make the distinction by saying it's not about who prosecutes the offense. I agree that those are both federal authorities. It's about who defines the offense itself. But like, if you think that through, why are federal authorities able to prosecute both offenses if they're not the ones who defined them? And that's where I thought Gorsuch's history was more compelling, which is that's because it is a federally defined offense.

Yes, it was created by the tribe, but it was codified. It was accepted by the federal government. It has their imprimatur on it, which is how the tribe could ban it in the first place, because there's a history of a lot of racism where they were basically saying tribes could and couldn't have forced certain things on their own land if it was deemed morally against what white people are doing, basically. Yeah. And Gorsuch is, one thing that Gorsuch is really good about in these Indian law cases is that he really does go back to sort of the origin of a lot of our, you know, of the legal structures

that we're operating under and shows how kind of they're rotten to their core. Don't forget, he's a former 10th Circuit judge out of Colorado himself who always was deeply interested in these tribal issues, which almost exclusively come up in the 10th Circuit. And so this is like his area of expertise. Yeah, yeah, exactly.

Like Kagan is admin law. That's what she taught for decades as a law professor before she became solicitor general, Gorsuch is tribal law. You don't mess with the expert. So Barrett is describing the opening of the CFR courts, the creation of the CFR courts, and then Gorsuch gives a little more flavor. He has a quote from this same Secretary of Interior, H.M. Teller. The court was designed to, quote, civilize the Indians, unquote, by forcing them to, quote, desist from the savage and barbarous practices calculated to continue them in savagery,

unquote. Now, I know there are some listeners who will say, oh, David, there's some really brutal stuff that you don't know about. Granted, I'm sure there's some brutal stuff out there, but we also need to understand that, you know, this was certainly said in 1880s, but if you go back in American history and you're talking about who gets to define what is

civilized and what is not civilized, one of the things that civilized, quote unquote, the five civilized tribes, these were the tribes that were moved to Oklahoma sort of as part of a, at the time, argued sort of permanent settlement of conflicts between those tribes and the United States. What is one of the things that tribes and the United States, what is one of the things that made them, quote unquote, civilized in Western eyes? It's that they had adopted some of the practices of slavery that we viewed, we being the United States at the time, as civilized behavior. So there's some ironies there in who gets to define what is civilized and what is savagery, because there was an institutionalized, uncivilized savagery on the part of the things that Gorsuch is good at is he just knows this stuff cold and he can call out the origin of some of these legal structures in a way

that I think is just really compelling, Sarah. I agree. All right. Should we move on to Kavanaughugh no and fourth circuit no no shin v ramirez oh shin v ramirez yes thank you okay i was about to cheat the listeners again again this is a case decided uh now last week week before uh involving the death. And we got a lot of emails asking us to go through this because it was getting a lot of attention on the left, and rightfully so. And I'm sorry we missed it, so let's go through it now. Before that, though, I need to get everyone up to speed on various parts of how death penalty cases work, really how criminal cases work. But in this case, it's going to be pretty death penalty specific. So first of all, you have a pretty old case

called Strickland v. Washington in 1984. This sets out a new constitutional standard where an ineffective lawyer can itself be a Sixth Amendment violation, a violation of your right to counsel. Just because you have a counsel, if they are totally ineffective, then you didn't have counsel. Now, Strickland makes pretty clear that that's something more than a bad lawyer. In fact, it's a lot more than a bad lawyer. It is such a bad, bad, ineffective lawyer that it is the equivalent of having no lawyer at all. That would be the constitutional violation. Since Strickland, since 1984, and especially in the death penalty context, which has had a big distorting effect on different parts of criminal law,

that has been weakened, that very high standard for ineffective assistance of counsel. weekend, that very high standard for ineffective assistance of counsel. All sorts of things can be ineffective these days. A failure to investigate, you know, you didn't call the aunt who could have told you about the traumatic brain injury that would have made you realize that you should have brought up mental, uh, deformities at the sentencing, which might have prevented a jury from giving this person the death penalty. That can be an ineffective assistance of counsel claim, which again is supposed to be the equivalent of having no lawyer at all, not just a bad lawyer. Okay. Now, next thing you need to know. There are three silos. I'm going to call them silos, not buckets, and you'll see why. Three silos of how your criminal case

would go if you're charged with a capital case. But again, even if you're not, but for our purpose is a capital case. So you have the law and order version. You go to trial, you get convicted. Then you can appeal that all the way up your state court of appeals. You'll have a intermediate appellate court of some kind, and you might have a Supreme Court of some kind that may or may not have mandatory jurisdiction, or they don't have to take your case. In Texas, the criminal Supreme Court is separate from the civil Supreme Court, but that's one silo, right? That's called your direct, your trial and your direct appeal silo. After you lose that, so you're still convicted, you are now done. You're convicted of that crime. All of your appeals have been exhausted. You can move to silo two, which is called a post-conviction collateral attack on your conviction at the state level. at the state level. So you could have a state, basically a state habeas silo. And that's where you say that something about that entire first silo violated state law, state constitution,

or even the federal constitution. And you go once again, sort of all the way up that silo on the second silo, the collateral attack silo. After that silo, you are still convicted. Now you can get to the federal silo for federal habeas relief. And same thing, right? You can go up that silo, except that now there's some really strict rules on what you're allowed to actually complain about. To make it as easy as possible, you have to have complained before at the state level. You can't raise stuff for the first time. It needs to be federal violations, not violations of state law. Okay, so we have those three silos. Next thing you need to know is that a case called Davila,

which was decided in 2017, and yes, for those legal eagles out there, this case was argued by the husband of the pod. Outstanding. Outstanding. So I discussed with an unnamed expert today, this morning, just for some hot tips on Davila. But

this case is relevant because Davila is about who is ineffective. So the Sixth Amendment only guarantees you trial counsel. You have a right to counsel at the trial level, in that first silo, the first trial, the law and order version, right? That's how you get assigned an attorney. If you cannot afford one, the state will provide one for you. Because you are not required by the constitution to have appellate counsel, Davila says, therefore the appellate counsel cannot be the ineffective counsel. And Davila was kind of interesting as justellate counsel cannot be the ineffective counsel. And Davila was kind of interesting as just a fact pattern, because at the trial level, the trial counsel objects to, I believe it was the jury instructions.

So preserving the objection. And the appellate counsel forgets to mention it. Oh, boy. And therefore, it's waived for the whole rest of all of those silos. If you don't mention something every time, it's gone, it disappears. And so then down the line on that third silo, he says, I had ineffective appellate counsel

who waived that argument. And the court in Davila says, ooh, very sorry about that. But because you had no right to counsel to begin with, it doesn't really matter whether they were ineffective. That's not a constitutional violation. It would be the same as if you represented yourself and you didn't know that you had waived it. That's just not protected by the Constitution. Okay, so now enter in this case, Shin versus Ramirez. This is a traditional 6-3 with Justice Thomas writing and the three liberal justices in dissent. And Thomas says that when you're bringing

an ineffective assistance of counsel claim in the federal silo, that third silo, you can't present evidence for that claim. Okay, so that sounds pretty weird, David, but it's actually just a very strange conflict that's going to make sense when I explain it. Here's the conflict. You have a Supreme Court precedent less than 10 years old called Martinez. Here's what Martinez says. Generally speaking, as I said, a defendant convicted in state court must first raise any constitutional infirmity with their conviction in state court. If you don't say you had an ineffective assistance of counsel, you've waived ineffective assistance of counsel at that first beginning silo. Otherwise, it's gone. But Martinez creates an exception. It says that if a state allows a

prisoner to raise a claim of ineffective assistance of trial counsel for the first time in silo number two, then you can do it in silo number three, basically. A lawyer's ineffectiveness at that stage of the case can constitute cause to excuse the procedural default. Okay, so let me try. I'm going to try to explain this a couple ways. If you didn't raise ineffective assistance of counsel in silo number one and in silo number two, the state would have allowed you to raise it for the first time, but then your lawyer doesn't raise it. In silo number three, Martinez says you can raise it, as in it's a nested ineffective assistance of counsel. It's the ineffectiveness of silo two to not talk about

the ineffectiveness of silo one. I know it's hard. It's hard. Okay. So that's Martinez. It's less than 10 years old, but David, you have the statute EDPA. What does that stand for? That's a really good question, and I haven't known it in so long. It's Anti-Terrorism and Effective Death Penalty Act of 1996. EDPA says that if a prisoner has failed to develop the factual basis of a claim in a state court proceeding, basically the federal, the third silo cannot hold an evidentiary hearing on the claim. Now there's two exceptions, but everyone agreed that those two exceptions didn't apply here. So for our purposes, if you didn't present the evidence in silo one or silo two,

you cannot present evidence in silo three by statute. But Martinez just said that you could raise an ineffective assistance of counsel claim for the first time in silo three. So now we have a problem. You have the right to a claim of ineffective assistance of counsel in silo three, but no right to present evidence of that claim because of a statute. That makes no sense. So what do you do?

And six justices on the court with Justice Thomas say these are directly in conflict. And when a Supreme Court precedent is directly in conflict with a statute passed by Congress, signed into law by the president, the statute wins. David, this is why this has gotten so much attention on the left, because even though that's a really complicated and convoluted case in a lot of ways, the result is that someone who claims that they are innocent of the crime to which they are being put to death and their claim for that is going to rely on the fact that their lawyer didn't actually investigate whether they committed the crime. And then their second lawyer didn't mention the fact that their first lawyer didn't investigate the crime. Then in the federal government, even though you have the right to say that you had an ineffective, well, two ineffective lawyers, that you don't

have any ability to present evidence of whether your lawyer actually investigated. And under that Strickland case law, the lawyer had a duty to investigate. So look, in some cases, you don't need to present evidence of an ineffective claim. Like they didn't object. Well, it's either on the record that they objected or they didn't.

But- And that's what, I think that's important to bring up when you're talking about introduce evidence. You can still rely on the record of the case. Absolutely. Right. You just can't introduce new evidence. So in some ineffective claims, like again, failure to object or they said something in the case, which was like, oh, and my client's guilty, by the way, that would all be in the record. So then your ineffective claim is going to be just fine in silo three. But for someone who's ineffective claim is like my lawyer literally didn't do anything. They were a potted plant. You're not gonna be able to present any evidence

because you're going to need to show that they, there were all these people that they could have talked to who were like, no, no, no. I saw the guy who did it. Bob did it, not Jim. But my lawyer never talked to any of these people that would have shown that Jim did it or Bob did it, whichever my hypo. And so in this case, these are actually two cases here. One of these people claims that they are innocent of the crime. And now they are basically not going to get to go any further because they can't present evidence about any of what their lawyer failed to do. And in this case, the lawyer they're alleging failed to find the evidence that would have shown that he didn't commit the crime. So, A, David, this is an important case. It's fascinating, even if you don't care about the death penalty, because it's this exact same thing we just talked

about, which is cabining a precedent that the majority of this court doesn't agree with, instead of overruling it, just totally shrinking it down to its facts. So you have the right to bring a claim. That's what all Martinez said. We never said you were going to have the right to bring evidence of that claim. Ha ha, joke's on you. So I think we're seeing a stare decisis doctrine form in this court, not interested necessarily in overruling precedent, but no problem cabining it nearly to its facts. But David, I got to tell you, in this case where you have a direct conflict with the statute in question, it's a little hard to get around. Yeah, it is. It is. I thought that was a great explanation of something that is

very complicated. And so my comment has got nothing to do with sort of the actual merits of the case. It's an observation for aspiring lawyers out there who I know listen to this podcast in numbers. One of the most important sort of if you're going to break down the legal profession into many different bars. So I used to think of myself as a member of the religious liberty bar, which for a time period, when I first started was so small, we could all meet in a, like a phone booth outside of Duluth. I mean, very small bar, but there is a death penalty defense bar and this death penalty defense bar, A, is one of the most indispensable sort of subcategories of the practice of law that's out there. And B, as you can tell from Sarah's discussion, requires high octane minds to the procedural history of the case is almost, is far more convoluted and far more complex often than any discussion of the facts

of the case itself. And so this is one of those areas where I would say, you know, our failure to invest in a defense bar, a meaningful defense bar, not meaningful, our failure to fully invest in the defense bar, we do have a meaningful defense bar, our failure to fully invest in the defense bar has left a lot of it under-resourced and then has led sort of the nonprofit sector through things like the Innocence Project and others to try to fill those gaps. And my goodness, what an unbelievably complicated area to practice.

Very true. The only other thing I would add is that it's a, it is at least one of the very practical reasons to be against the imposition of the death penalty. And I was talking to a former prosecutor turned criminal law professor this weekend, and she had just a fantastically interesting observation, David, one that maybe you and I should do a deeper dive on in a later episode about the death penalty. We are getting rid of the death penalty, but it's with a whimper and not a bang. There's not going to be a one day we flip a switch and there's no

longer the death penalty. It's just becoming more and more disfavored. And this is one of the very practical reasons why. It is incredibly complicated and hugely resource intensive. Think about all of those hearings and the original trial in three different silos. And the resources that are going to the death penalty could be going to people who are spending life without the possibility of parole in prison. I think it is fair to assume that the percentage of people who are actually innocent but facing the death penalty, who we have found through DNA and things like that, probably it's a very similar percentage to those spending life without the possibility of parole, but they're simply not the resources to help those people the way that there is the death penalty. Now, you can argue if there's no more death penalty, then people aren't going to be as interested in providing those resources because it's not life or death.

But even if it's 80% or 60% of the resources going to look at those actual innocence claims in the people who are there, um, L whopping in prison, uh, yeah, I mean, you can't say this is soft on crime. If you didn't commit the crime, I don't want you in jail. And it also means the person who did do it, actually, usually that person is also in prison because they've done something else since then, but some of them are out there and they weren't convicted of this crime that they committed. So there's a lot that is not working with our death penalty system right now. And there are reasons therefore to say, let's fix the system. And there's reasons to say, even though I am in favor of the death penalty in theory or think that it is

constitutional in theory, I don't know that there is a way to fix this system. And therefore, we don't need it because we can LWAP people and just have them rot, sometimes literally, in prison for the crime

that they committed. LWAP, life without parole. Yeah. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today.

Even better, with unlimited storage and an easy-to-use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go-to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off plus free shipping on their best selling frame. That's auraframes.com. Use code advisory at checkout to save. Terms and conditions apply. All right, let's talk Kavanaugh and inchoate crimes. So this is a really fun day of criminal law in law school, David, the inchoate crime.

It's sometimes more than a day. It's like a half a week or so on inchoate stuff. And this is attempts. Attempted murder is what the person was charged with who was arrested outside Justice Kavanaugh's home last week. And a lot of folks now saying or confused about why he can be charged with attempted murder. There's a few reasons. One, did he actually do enough to attempt the murder? And two, did he abandon his plan to attempt the murder when he called 911 himself to say that he was planning to murder Justice Kavanaugh, and that's how the police arrested him. Oren Kerr, the fabulous law professor at Cal Berkeley, put up a little tweet that I thought was worth discussing, David. Under the case law here from the Fourth Circuit, which covers Maryland, the fact that police presence ultimately caused the

defendant to forego completion of the crime in no way establishes an abandonment of the attempt. But the facts in that case, pretty different. Basically, the two criminals show up, see police, and then are like, okay, not happening today. And then they still charge them. It was a crack deal. And the point was like, you didn't abandon in the legal definition of abandoning. You were just deterred by police.

You were still attempting to do the crime in question. And this gets to what you have to do to attempt something and what you have to do to attempt something and what you have to do to abandon it. So attempt first, you must have the specific intent for the actual crime. Not much of a question here about that. I mean, he said he wanted to kill Justice Kavanaugh, so that's done. Second, the person must take actions in furtherance of the crime. That's where things get tricky, actions in furtherance of the crime, that's where things get tricky, is flying across the country and taking a cab and getting dropped off in front of his house, enough of action in furtherance of the crime. Most people, frankly, are going to say yes to that. But that is going to be the question,

one of the questions. And third, the crime must not have been completed, otherwise you'd get charged with the crime itself. So that one's not very interesting. Now there's the abandonment, which is going to be his, I think, chief claim at his trial. First, a defendant may argue that he abandoned his efforts to commit a crime and did not attempt or conspire to commit the crime. It requires that the person completely and voluntarily stop all actions in furtherance of the actual crime. This is tough, David. It is different to call 911 than it is to see cops and be like, well, we'll have to

do it later. Rain check on that crack deal. But there's a big problem in his defense. He gets dropped off in the cab. He sees the two marshals and then he calls 911. And as professor Kerr notes, uh, someone in Twitter was like, in the cited cases, the accused didn't call 911 to turn themselves in. Couldn't this constitute stronger evidence of abandonment? Orrin Kerr says, how would that work? You can't abandon when you see the police,

except you can if you quickly call 911. That is a very good reply, but I still think that's going to be the defense at trial, and it might be enough. Yeah, yeah. It might be enough. Oh, I don't think it will be. I think he'll be enough. Yeah, yeah. It might be enough. Oh, I don't think it will be. I think he'll be convicted.

But, I mean, you're going to have two arguments. That just flying across the country and showing up at the house isn't enough. You need to, like, try to get in the house. Try to actually, like, gain closer access to Justice Kavanaugh. I think his house is pretty close. And two, that you were going to call 911 anyway. You were already sort of wandering around. It wasn't the marshals that made you move off.

It was that you're not mentally well and you just weren't sure whether you were going to do it. Yeah. Flying across the country, armed to the teeth. You've got your burglary tools. You've got your weapons. You're right to the teeth. You've got your burglary tools. You've got your weapons. You're right outside the house. And then you see the marshals. Uphill battle. Good luck. Uphill battle. Uphill battle. Now, can I rant about something for just

a moment? I like your rants usually. Let's see. Okay. So over the weekend for my Sunday newsletter, I wrote a piece that really focused around the Kavanaugh assassination attempt. And it made some of the points that we made in our podcast when we were talking about it. And I introduced folks to the concept of something called stochastic terrorism. It's a kind of a controversial concept in the literature. But what it essentially means is that if you do demonize a group or an individual, then statistically, the probability or possibility that a person who has been demonized is going to be subject to a physical attack of some kind dramatically increases. In other words, it's kind of an academic way of saying words have consequences. If you whip up hate against a group, don't be shocked if there are attacks against that group.

And this has often been used in the context of describing, for example, the effects of whipping up replacement theory rhetoric, what impact that might have down the line, say, in the Buffalo shooting or the El Paso shooting or the Tree of Life shooting in Pittsburgh. And a lot of people can really sort of see this as a common sense concept right up until the moment when violence breaks out or there's attempted violence against somebody they hate, then it's like, what are you talking about? How is it even possible? All I'm doing is, you know, expressing my opinion. How on earth can you hold me in any way, even slightly morally

responsible for the terrible act of this other separate person? And the point that I was trying to make in my piece was that if this concept is true, and I do think it's true, I mean, look at it this way. If you're just a normal, absent, like terrible bad luck, like running into street crime or whatever, if you're an ordinary, normal person and only five people you know of in the whole world hate you, the odds that one of them is going to sort of do something about it's pretty low. But what if that number is 50,000? What do something about it's pretty low but what if that number is 50,000 what if that number is 500,000 what if that number is a million or 10 million or

15 million then the odds that one of those people actually put something into motion increases dramatically and this is one of the reasons why our own rhetoric matters. The more that you broadcast your hatred and the more that you sort of use your voice to infect the body politic more broadly with hatred, the more you're going to contribute in some small way. And of course, you're not going to be legally responsible for this, but you contribute in some small way to this concept of stochastic terrorism, that metastasizing hatred, the more it metastasizes, the greater the likelihood it results in action. issue when it involves somebody on their own, the condemning actions by people on their own side is remarkable, Sarah. So I put that article out there yesterday, and I cannot tell you how many times people said, oh, what about this violent act?

Or what about that violent act by somebody on the other side? To which I'm saying, yes, of course. And then people were angry that I didn't mention every violent act. So I went through and I counted about 18 or 19 separate violent incidents or intimidating instances that happen at people's homes on both sides of the spectrum.

But I should have mentioned the 20th or the 21st. Otherwise, well, I'm not going to listen to you. This is where we are. And the thing is, one thing that kind of sort of proves my point a bit, Sarah, and then I'll end the rant. The temptation that I see on the part of people on the left to what about any mention of hatred against Brett Kavanaugh is really interesting to me and really remarkable. You bring up something to do with Brett Kavanaugh. You bring up indefensible conduct towards him. And if your response is to what about it,

if your response is to what about it, that's part of the problem here. That's part of the problem here. That's part of the problem here. Any action of minimizing the magnitude of public hatred against public officials facilitates that hatred. And rant. Good rant. Good rant. All right. Did we get through it all? Gun control? Oh, goodness. Yes. So there has been a tentative agreement with 10 Republicans, at least on board with a compromise gun control package that looks like it will move through the Senate, as I said, 10 Republican senators or more on board. And Nancy Pelosi says she is behind it at this point, although I do question whether the House

will be a bigger hurdle in practice. David, do you want to run through some of the parts of it and why you like it? So the first thing that I like about it is that it provides funding for state red flag laws. I think this is the way the federal government can and should be involved in the red flag context by providing funding and facilitation for red flag laws, incentivizing the passage of red flag laws. I think this is good on two counts.

One is I do hope that there's 19 states plus the District of Columbia that have a red flag law now. Hopefully that number will go up now that there's money there. now. Hopefully that number will go up now that there's money there. The other thing that I think really can help is that by providing funding, you can enhance the effectiveness of the laws that already exist, not just have new laws, but enhance the effectiveness of laws that already exist. And how is that? Because if any smart deployment of those funds will increase awareness. So you want people to know that they exist. If you, for example, if you're somebody who's in an abusive relationship and you have no idea that there's a domestic violence restraining order available,

it's as if the law doesn't exist. So if you're in a situation where someone is radiating threat and menace that they're a threat to themselves or others, then if you don't know that law exists, it's as if it doesn't. So I think funding here is going to be very important to get people to even know what options that they have to protect themselves and others through the red flag process. That's number one. Number two, there's an enhanced background check for young gun buyers.

People who are purchasing guns before they're 21. So this enhanced background check, I think, is a really clever and good way of dealing with the issue of the 18-year-old gun purchaser, the 18 to 21-year-old gun purchaser. Because the fact of the matter is the vast majority of these people are peaceful, the vast majority of these people are peaceful, the vast majority. But at the same time, that is also a sort of an age category that Sarah, as we've talked about before, has much more impulse control issues. It's moving much more into a prime age of criminal activity. And then the other thing that's a kind of a twist on this is because they're just exiting the juvenile world. Many times, the most dangerous people will have a juvenile record that if it was in an adult context would

disqualify them from owning the weapon. But say it's been expunged, it's not going to show up on a background check. And so I think we'll really need to see the details of this. But I think there'd be a high degree of consensus that somebody who's committed assault at age 16 shouldn't be able to purchase a rifle or a handgun at handgun at age 18. Absolutely agree. I want to see the details of that because that really is devils in the details. What does an enhanced background check really mean? Because if they're not able to find that you committed assault at 16, then what's the point? Second, at the point that we're not barring purchase, but just doing enhanced background checks, I would raise the age. Because the real issue is men who don't have their

frontal lobes fully developed, and they're not going to be fully developed at 21 either. Yeah, I, you know, Florida after Parkland raised the age for purchasing a rifle to 21 and implemented a red flag law. And I, to me, I don't have one bit of problem with that, but if you're not going to raise the age, the enhanced background check, and again, we need to see the details. Um, but I think this is important. Third thing that I think is particularly important is they want to toughen laws against straw purchasing. This is important. Now, straw purchase is when I buy a gun ostensibly representing on the form that I'm buying it for myself, but I'm really buying it for somebody else.

Or at worst, buying it for somebody else who's not legally permitted to own a gun. So this is a prime way that criminals actually obtain weapons. Now, this is another one that's not just the devil in the details here, it's the devil in the enforcement because a lot of prosecutors don't enforce straw purchasing violations.

And you might say, well, why? Well, there's a couple of reasons. One is it's still a decent amount of effort for maybe not a lot of tangible return in the same way that you get when you prosecute somebody for actual assault or for actual gun violence. The other, and this is kind of a grim reality of the situation, is sometimes the straw purchasing is of, say, the wives or the girlfriends, and of the actual criminal. In that circumstance, a prosecutor is looking at, wait a minute, we could be putting both parents of young children in prison? Is that something that

we want to do in an exercise of our prosecutorial discretion? So that is, again, we'll need to see the details, but we do have an under-enforcement problem when it comes to straw purchases of weapons. So those are the big three things in my mind. There's some other technical stuff along with sort of promises to fund school security and to fund mental health, enhanced mental health services, all fine.

But the last thing that I'd say about this, Sarah, and then love your reaction to this, is that one thing I liked about this, so the big three policy things I liked were red flags, enhanced background checks, straw purchasing, beefing up straw purchasing enforcement. Here's number four that I really liked, which is for once we actually watched politicians approach politics as the art of the possible,

negotiate like adults, and reach a compromise that actually can move the ball down the field rather than going for all of this all or nothing nonsense and then trying to have the issue for the midterm. Don't jinx it, David. Okay, I'm sorry.

It's not through the House yet. I know. I think that there is going to be a revolt among House Democrats that this would not have prevented Uvalde, X, Y, and Z. And they're not wrong. I guess my thing is, to your point,

let's get this. Then you can push the things that you want. Also, a huge win for Joe Biden to be one of the first presidents to sign a major piece of gun legislation in recent history. With bipartisan consensus. I think that's right. I also would say to the people who think it's not enough, and it wouldn't have stopped Uvalde, and we need to do more. it's not enough and it wouldn't have stopped Uvalde and we need to do more. Again, the point is not to stop Uvalde. The point is to see whether we can do anything to prevent unnecessary gun deaths in the future, the vast, vast majority of which are suicides

and street crime related. And I think that the things you laid out will do that, can do that at least. And while I wish that I had great solutions for school shootings, I think you listeners know that I really, really, really wish I did. I don't think that any of these things will necessarily prevent the next school shooting,

but I'm also not sure there's anything that can right now. I mean, the red flag piece is the one that has the best chance. Yep, I think you've made that case convincingly, but... And the other thing is, for gun owners out there, Second Amendment advocates out there, if you are a responsible gun owner,

in other words, you're a person with a clean criminal record, you're not acting like a weirdo on social media. If you're a responsible gun owner, there is nothing in here, nothing in here that impacts your liberty. Absolutely nothing. You're not going to be touched by red flag law.

An enhanced background check is not going to trouble you in the slightest. You're not doing straw purchasing. Well, they're going to say that an enhanced background check would affect them because it's going to then take longer to pass a background check or that red flag laws could be used against your enemies. You call in something and say, this person makes me nervous, and that's all of a sudden going to be enough. So I do think you'll get pushback from the right. But I think, again, don't take a victory lap yet because, first of all, it still

hasn't passed the Senate, although that looks quite likely. And Nancy Pelosi says she backs it in the House, which is normally a decent sign that it can pass the House. But wait till you see that revolt from the squad progressive left. Yeah, I wonder about that. And it's not going to get a lot of Republican support in the House because, as they proved in the infrastructure bill, that even if you have a large number of Republican senators backing it, the House is another matter entirely. So Pelosi's going to need basically her whole coalition. You know, there might be five or six or seven Republicans that might cross the aisle here, but she's going to need everybody. And we've seen time and time again,

the hardcore progressive left in Congress will say, we'd rather have nothing. We'd rather have nothing than something better. That they view it's the perfect, got to have the perfect, can't have the decent, can't have the good, got to have the perfect, or we're going to take nothing. I mean, one of the paradigmatic examples of this, and this wasn't just the House, but in the Senate, was Tim Scott. Tim Scott negotiated in good faith on a police reform bill. Didn't have everything, but it had a lot of things.

It had a lot of things, but nope, nope, not going to do that. Not going to do something that's a little bit better. But at least in the Senate, at least in this instance, you seem to have something promising here and we'll see. We'll see. More opinions coming on Wednesday. Yes, indeed. So hang on to your hats, everybody. Are you still thinking Dobbs at the end? I am. I am too. Yes, indeed. So, hang on to your hats, everybody. Are you still thinking Dobbs at the end? I am. I am, too. I am, too. In fact, because at this point, I think there's an additional reason, which is the security reason,

which is you want the justices to be gone. After that, you don't want people to necessarily know exactly where they're going to be in their movements, which right now we would. Yeah, that's... I hadn't even thought about that. That's a very, very good point. All right. Well, thank you guys for listening, as always. And please rate us. Please subscribe and please check us out at the dispatch dot com. And we'll be back on Earth. Thank you.