Advisory Opinions - The Trial of Derek Chauvin

Episode Date: April 16, 2021

On today’s episode, David and Sarah discuss the ins and outs of Derek Chauvin’s murder trial, including why Chauvin didn’t take the stand and whether he’s likely to be convicted. Plus, our hosts chat about House Democrats’ latest court-packing bill—what Sarah calls “a press release in the form of legislation”—former Brooklyn Center police officer Kim Potter’s fatal shooting of Daunte Wright, and an en banc 6th Circuit case involving abortion. Show Notes: -“Chauvin Defense Expert Destroyed on the Stand” by Andrew McCarthy in National Review -Pre-Term Cleveland v. McCloud Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the Advisory Opinions podcast. This is David French with Sarah Isger. We're going to cover a bunch of things today, including the controversy that has been burning up the Advisory Opinions inbox, the Advisory Opinions Twitter replies, and we're going to have a special guest. I don't know, Sarah, should we, should we disclose a special guest now? Let's do it.

Producer Caleb, producer Caleb is going to come on the show at the end of the show. And he is going to describe his controversial decision to change the advisory opinions, introductory music. He's going to explain himself, Sarah. Are you going to grill him? Oh, yeah, obviously.

Okay, okay. Because we can't let him off the hook easily. I mean, the people have to have a voice through us to have producer Caleb explain himself about our introductory music. But music isn't all we're going to cover today. We're going to talk about the Democrats' bill that will be introduced today to expand the Supreme Court.

We're going to talk about the trial of Derek Chauvin, what has gone right and wrong for the prosecution so far. We're going to talk about the most recent police shooting involving a taser or involving allegedly a confusion between a handgun and a taser. We're also going to talk about an en banc Sixth Circuit case that upheld a restriction on abortion, a very specific restriction on abortion. And then, of course, we're concluding with the interview. Okay, so let's start. This is something that's burning up the online world right now.

I'm just going to read the first couple of paragraphs of an NBC story. Congressional Democrats will introduce legislation Thursday to expand the Supreme Court from nine to 13 justices. A totally random number, no doubt, Sarah. One that just would happen to expand the Supreme Court from nine to 13 justices. A totally random number, no doubt, Sarah. One that just would happen to change the balance of the court from six three Republican appointees to seven six Democratic appointees. But I'm sure that's entirely accidental. Joining progressive activists pushing to transform the court.

The move intensifies a high stakes ideological fight over the future of the court after Donald Trump and Republicans appointed three conservative justices in four years, including one who was confirmed days before the 2020 election. Your thoughts on this? Never going to happen. Never going to happen. Never going to happen. Never going to happen. So we don't need to talk about it right no this is not going anywhere this is not going anywhere it's not happening um there are not i mean there's not the votes on the senate to bust the filibuster over this um and even if you had no filibuster there's not the votes in the senate to do this so that's that now

revisit it in 2018 if i mean in 2022 sorry if democrats win some sort of sweeping larger congressional majorities maybe uh but no this is what uh how many days of twitter fighting is this going to be or maybe less than a day? Yeah, less. This was a paid press release, except it was a free press release. But this was a press release in the form of legislation. That's all. Yeah. Okay.

So we've checked that box. We talked about it only because we knew you might be a little bit curious about it, but I'm not taking it seriously. Sarah's not taking it seriously. Next topic. Okay. We have been paying attention to the Derek Chauvin case. It has now been going on for days and days. This is the case in Minneapolis, the criminal prosecution of the principal police officer involved in the killing of George Floyd. And there has been a lot that has transpired. We have now seen the prosecution case. We have seen a large segment of the defense case. And so I think it's time, Sarah, to sort of talk about this case, talk about where it's going, get some impressions about what's gone right and wrong

for the prosecution, right and wrong for the defense. I don't know. Do you want to start? Do you want me to start? What do you think? Happy to start because I think because we haven't talked about this yet, let's lay a lot of groundwork here. So first of all, the prosecution rested their primary case. There is some discussion today about newly discovered evidence that I do not think will have a major impact on the case. This is the results of the carbon monoxide testing that occurred that basically no one was aware of until last night slash the defense found out about it this morning. The defense is going to rest their case today. Derek Chauvin is not going to take the stand. The defense is going to rest their case today. Derek Chauvin is not going to take the stand.

He's going to, in fact, invoke his Fifth Amendment rights, which he did this morning with the judge. The jury will be instructed, of course, that it is the prosecution's burden to prove his guilt. The defense does not need to prove his innocence and that they should not and cannot hold his decision not to testify against him. I do want to talk about the decision, though, for a defendant facing long odds not to testify. But first, let's talk about the charges that he's facing. Initially, he was charged with third-degree murder and second-degree manslaughter charges. They then added the second-degree murder charge. They then added the second degree murder charge. So let's start at the highest level and talk about what needs to be proved for each one and some controversies around each one. So first, second degree murder. One, Mr. Floyd died. No question about that. Two, Officer Chauvin committed a

prohibited felony. Three, Officer Chauvin caused the death of Mr. Floyd. So this is a felony murder charge. This is really fascinating because Minnesota has a very old school felony murder doctrine that most other jurisdictions have gotten away from. First of all, a lot of jurisdictions have gotten rid of felony murder because it can lead to some kind of screwed up results. But especially most of those jurisdictions have gotten rid of the merger rule type thing, where the murder is the underlying felony, basically, which is exactly what the claim is in this case, that the assault is what led to the death. But that's really all the same action, as opposed to felony murder, where it's a bank robbery is the felony that led to murder. Where the assault is the felony, it basically just lets you charge someone with

second-degree murder if you assaulted someone and it resulted in their death, which is exactly what this is going to be. Now, in order to prove assault for an officer, because of course officers are allowed to touch people against their will, you have to show that Officer Chauvin's use of force was unreasonable, that it went from a reasonable use of force needed to control or restrain and went past that. And the second it went past that to an unreasonable use of force, then you can find that he committed assault. And then that third element that he caused the death, of course, will be a big part of this as well. Okay, so that's the first one, second degree murder. Interestingly, second

degree murder in Minnesota carries the exact same penalty as third degree murder. So even though one sounds worse than the other, they're actually kind of the same in a lot of ways. So let's talk about third degree murder. Third degree murder and the manslaughter charge are actually very similar as well. The third degree murder here is what is sort of colloquial or in common law known as depraved heart murder. In Minnesota, they weirdly call it depraved mind murder. But if you're a lawyer and remember first year of criminal law, you're going to remember it as depraved heart. Elements. One, Officer Chauvin committed an intentional act. No question that he was intentionally restraining Mr. Floyd. That act

was eminently dangerous to human life. That's going to be debated. In perpetrating the act, Officer Chauvin knew he could kill Mr. Floyd by performing the act and displayed a disregard for his life. Four, Mr. Floyd died. Five, the act caused Mr. Floyd's death. And then let's do the manslaughter charge last. Mr. Floyd died. Officer Chauvin acted negligently toward Mr. Floyd, and Officer Chauvin's negligence was the cause of Mr. Floyd's death. Again, if you're thinking that third-degree murder and second-degree manslaughter, you're not quite sure what the difference is. Again, if you're thinking that third-degree murder and second-degree manslaughter, you're not quite sure what the difference is, that's because you're listening well and you understand. That is not for lack of understanding. There was a lot of controversy,

though, around adding the third-degree murder charge. Initially, the trial judge actually threw that out because what it actually says in the statute is third degree murder applies when a defendant kills someone, quote, by perpetrating an act eminently dangerous to others and evincing a depraved mind. Well, others is plural. And so there have been questions about whether an officer whose actions only are directed towards one person can be even charged with third degree murder. Remember, this is a legal question, so it's not up to the jury. This is up to the judge. The judge in this case threw that out and said only Mr. Floyd was the target of Officer Chauvin and the other officers in this case. Therefore, you cannot bring a third-degree murder charge.

However, the appellate court overruled him because on February 1st, they upheld the conviction of Mohamed Noor. Now, you may remember his case. Let's go back to that in a second. He was convicted of third-degree murder in the 2017 fatal shooting of a woman who had called 911 to report what she thought might be a sexual assault happening in the alley behind her. Even though she was the only person around, she was a single person being targeted, they reinstated the count there and upheld the conviction.

they reinstated the count there and upheld the conviction. Now, this is on appeal to the Minnesota Supreme Court. It is not resolved yet, which makes this really interesting because there is a really good chance that the jury, quote unquote, splits the difference between second degree murder, third degree murder, and second degree manslaughter and goes with the middle one because it's the middle one. In which case, Chauvin would get convicted, same as Officer Knorr, for third-degree murder, that depraved heart murder. And that's the one where the statute says others. And you could have the Minnesota Supreme Court say, look, the plain words of the statute are really clear, and you're going to have to retry these folks not using third-degree murder as an option. Whew.

So that's the charges. And remember, the statutory language is different than the elements, but the elements are what you're going to have to prove to the jury. And that's what the jury charge is going to say. You know, did officer, do you find that officer Chauvin, you know, committed this act with negligence and it'll run through those elements in sort of a more narrative form. Um, so David, that's where this whole trial begins. Do you want to talk about where the prosecution took things? And then the defense had a very short presentation. Um, and it didn't maybe go how they wanted. Yeah. So this is interesting, the twists and turns here, because there are a couple of questions.

One was critical, which is what was the cause of death here? So what was, why did George Floyd die? I mean, that's a huge part of this. If you've paid attention and you've sort of seen some of the competing narratives on right-wing media versus mainstream media on this, the mainstream media sort of narrative has been, wait a minute, look, Derek Chauvin put his knee on George Floyd's neck and whatever other medical conditions he had, that knee on the neck asphyxiated him. That he died because he was, in essence, not literally, but functionally the same as being choked to death. If you hear a lot of right-wing media, they're saying this case is ridiculous. He had

a bunch of fentanyl in his system. It was a drug overdose. He was going to die anyway. He was being restrained because he had resisted arrest and he had an overdose. He was restrained because he resisted arrest. That's normal. He had an overdose and he died of the overdose. He did not die of the police pressure on his neck. And so initially, there are a couple of things early on in the trial from the prosecution standpoint that appeared to go negatively for the prosecution. And there were two things that a lot of folks pinned on and said, wait a minute, what does this do to the prosecution narrative? And number one was there appeared to be some ambiguity over whether or not George Floyd said and was saying, I ate too many drugs. And when in the middle of it uh if the detention process that floyd said i ate too many drugs and

then the question was did he say i ate too many drugs or did he say i ain't do no drugs but initially it looked like one of the prosecution witnesses said that he said i ate too many drugs so that that was that sort of poked a hole in the narrative or supported a defense narrative that what we had was a drug death, a drug overdose, and that was a point in the defense's favor. said that there was not a chokehold used, that the chauvin did not use a chokehold, that the kind of the pressure on the neck wasn't a classic chokehold. And now, so again, if you're saying, wait, was he asphyxiated, choked to death? And then what he really, that if your argument was that he was asphyxiated, and then a prosecution witness says there was not a chokehold, but what he died from was a drug overdose, it would appear that the prosecution case was stumbling. Well, then towards the end of the prosecution case,

they came in with some medical testimony that kind of upended the narrative and really put not just Chauvin's actions, but also remember there were other police officers who were kneeling on George Floyd. So suddenly it puts not only Chauvin sort of back in the crosshairs, but these other police officers. And essentially what that other testimony was, that he wasn't choked to death, that what happened was that the pressure on his body made him unable to breathe properly. That in other words, what was happening is he was slowly pressed to death, not choked to death. And so whether or not there was a chokehold wasn't the key issue. It was that he had been pressed down to death. And then the defense case didn't go so well because there was some testimony. The question was, was there a use of force on George Floyd or was there a use of control testimony on George Floyd?

And one of the key questions about control versus force is pain, is the presence of pain. And so what was clearly what began to happen is as the defense witness was being walked through the video, the evidence of pain was abundant, where George Floyd is crying out, my stomach hurts, my neck hurts, everything hurts, give me water or something. And so what you're talking about is, again, a lot of pain, that this was force, not just a control method. And so what ends up happening and my friend annie mccarthy has been following this case very very closely and he interpreted this um this evidence of all of this pain that there was an implicit acknowledgement that chauvin used excessive force on floyd so you went from a situation earlier on in a trial where there's no chokehold,

there was evidence that Floyd resisted, and he said, I ate too many drugs. All of those things seem to add up to some doubt here. And then it turns into, wait a minute, didn't matter if there was a chokehold, he was slowly pressed to death through not just the use of a control technique, but force even after he stopped resisting. And that's why I think a lot of folks who've been watching this, kind of trying to come into it without a lot of bias on the front end, have said, hmm, this has started to swing against the defense. Of course, it's going to be up to the jury, but it's started to swing against the defense.

I think that's right. I watched the testimony from the expert. And again, just from a communication persuasion standpoint, it's very interesting testimony because while what he said hurt the defense's case, the way he said it arguably helped them. He maintained his credibility. If he had just continued saying like, nope, nothing to see here, nothing wrong here, it would have undermined what he had said to help Officer Chauvin. So as expert witnesses go, the part of the problem, maybe the only problem here, is that the defense has a really hard case to make. Not that their experts screwed up. I think their expert actually did exactly what you'd want an expert to do in that situation, which is maintain your credibility, even if you have to concede some stuff, because your credibility is the only thing that the jury has to go on at this point. And if you're our star witness, we need

you credible. But this gets to the question I asked earlier, David. The choice of a defendant to testify or not to testify comes after the prosecution has made their case, after the defense has made their case, and you've seen how the whole thing goes, and now the defendant has to sit there and talk to their lawyer and say, is it worth it? And to take the stand comes with a lot of downsides. The jury is largely gauging whether they like you. The cross-examination in this case, especially would have been brutal as they just walk through the video and pause it every couple seconds. What are you thinking now? A couple more seconds. Okay. What are you thinking now? Uh, do you think he's resisting arrest at this point? Did you believe

at that point that he was resisting arrest? Cause he hasn't moved, uh, for two minutes. Okay. One more minute. Now he hasn't moved for four minutes. Okay, one more minute. Now he hasn't moved for four minutes. Do you still think he's resisting arrest? You know, like that's how that cross-examination would have gone. On the other hand, there is no way that they believe this has gone well for them. And it's your last chance

to make an emotional plea to the jury. I, you will notice in all of the elements that I read, none of them include that Officer Chauvin needed to intended to kill George Floyd. However, it certainly, I think, will weigh on the jury, especially in terms of whether they go for second-degree murder, third-degree murder, or second-degree manslaughter. How much did he intend to kill George Floyd? And if you take the stand and say, I'm heartbroken this has happened. It was never my intention that day. Here's what I was thinking. You have some chance maybe of talking them down into that manslaughter category instead of in the

murders. But they decided not to take the stand. I think that the fear of the cross-examination doing more harm than the direct examination doing good, you know, they sat there, they ran through it. No doubt they probably did some practice runs. I found it interesting this morning as Officer Chauvin was speaking with the judge, because when you waive your right to testify and invoke your Fifth Amendment rights, that is not your lawyer's decision. That is your decision. And so the judge asks you, the defendant, and you have this little colloquy with the judge. Again, this is a very short, this was less than five minutes. Certainly it might've been closer to three minutes back and forth that I watched. Uh, if I were his lawyer, I don't think I'd put him on the stand simply from a demeanor standpoint, his facial expressions. He had trouble not looking

like he was smirk has some pejorative connotations and I don't mean it actually to be pejorative. I mean, what is less than a smile, but where your mouth kind of has this like upturned look to it that you can't quite read what the person is thinking. Do they think something about this is funny? There's no way he thought this morning was humorous in any way. It, it's probably just the way his face is. Um, but his, his mannerisms, his facial expressions, his voice, all of those sort of nonverbal cues that a jury is going to read into so much, I don't think I'd put this guy on the stand. Yeah.

You know, it's interesting how people have different communicative quirks when they're nervous or under stress. So, you know, one of mine, if I'm a little bit nervous, is I kind of have a nervous chuckle. You know, like I'll kind of, you know, to break the tension. Even if something's not funny, yeah, that's a tell for me that I'm not necessarily entirely comfortable right now, which that can be in certain circumstances, really bad. That could be really bad. Or people have sort of a defensive smirk or a defensive kind of defiance. There's a lot of different ways in which, which is one of the reasons why I've

always been very negative about the ability of people to determine veracity by demeanor. I'm very down on that. And one of the reasons why I'm down on that is I have litigated enough cases to know that, you know, there are many times when I've come in and I have questioned a witness and I know what's true because I have the documents in front of me or I have an audio tape or I have whatever I need to establish a fact. And I've had people tell me that what is true is not true with such conviction that if I wasn't about to pull out the next exhibit, they would have absolutely won me over. Absolutely.

And then I've seen people who are telling me things that are true, who are so nervous that I wouldn't believe them as far as I could throw them. So there is so much to this demeanor calculus that attorneys have to think through before they put someone on the stand. that attorneys have to think through before they put someone on the stand. And the other thing that I would note about this is if you are experienced in defending police officers, and if you've paid a lot of attention to these police officer cases, you will know time and time again that there are two concepts that have been used very effectively with jurors that do not apply here. And one is split-second decision-making.

Who are you to second-guess a split-second decision? Which is kind of a sleight of hand because they are supposed to are supposed to second guess the split second decision making. There is the, the, you know, jurors are supposed to determine reasonable fear and re what's, what is reasonable or what is not reasonable is determined by the totality of the facts and circumstances.

So on the one hand, um, the defense attorney is kind of casting aspersions on the jurors exact job, but it's a very powerful sort of rhetorical argument. Don't question a split-second decision. This wasn't a split-second decision. And then the other one is, you have seen defense attorneys elicit from police officers very powerful testimony of fear that they were afraid. And so it's split second and they're afraid. And that means hands off jury. That's the argument. That's not the legal standard,

but that's the argument. And it's been used very effectively, even in surprising cases. So I want to run through some of those cases that I think are most relevant to what's going to happen here. And I'm so glad you raised raised what is missing here. So I have three cases I want to talk about that are all from the last four years. And just as a disclaimer, the first two cases happened when I was working at the Department of Justice. So while obviously I did not work on the prosecution, I was in the Office of Public Affairs and I was in meetings on some decision making. The first is Officer Slager. You may remember this case. He was charged with murder in the death of a man who was 50 years old, not armed, running from Officer Slager,

Officer Slager shot him five times. He was stopped in a traffic stop and ran from his car. There was a hung jury in the state charges. This was in South Carolina. It was stunning. I just couldn't believe it to have five shots in the back. A taser had been planted. This officer would have been able to say that this man was armed, but for someone taking video of it. But a single juror said, I cannot in good conscience consider a guilty verdict in a letter to the judge. said, I cannot in good conscience consider a guilty verdict in a letter to the judge. Interestingly, after that, we've talked a little bit about dual sovereignty. So that was a hung jury at the state level. They could have retried him at the state.

Instead, the Department of Justice stepped in. He pleaded guilty in May 2017 to deprivation of rights under color of law. In exchange, the state murder charges were dropped, as well as two other federal charges. However, that single civil rights offense had a maximum penalty of life in prison. They agreed to what would be the equivalent of second-degree murder, 25 years in prison. So that was the Slager trial. Again, hung jury with far more compelling evidence than what we have here, in my view, when you have five shots in the back. And remember, officers cannot use deadly force if someone is fleeing from them unless they believe that person is a threat to others. There was no one in the area. There were no people. He was running through sort of a field area. And of course, the fact that the officer then planted a taser next to him shows, to me, consciousness of guilt if there ever was one. Okay, the second case I want to talk about is Philandro Cast castile who was shot by officer uh yen is in june 20 sorry and uh the

verdict that we're going to talk about here is june 2017 so just after officer slager pleads guilty the next month in fact so this was believed to be the first time in minnesota history that an officer was charged in an on-duty fatal shooting. The question for the jurors... Which is a remarkable, that's a remarkable statistic. Remarkable. Remarkable. Absolutely. So, this is another traffic stop.

Not, you know, we're going to hear so much about traffic stops. Mr. Castillo was licensed to carry a gun on the dashboard cam. He calmly tells Officer Yanez that he has a weapon in the car. Officer Yanez tells him not to reach for the weapon. Mr. Castile and his girlfriend and her young daughter are both in the car also. So both the adults try to assure the officer that he's not reaching for the gun, but the officer is giving sort of contradictory instructions, right? Don't reach for the gun. Give me your ID. This is going to come when we talk about this next, you know, event. So Mr. Castile reaches into his pocket. Officer Yanez fires seven shots. He is acquitted in June of 2017. But David, to your point, what did this case have that the George Floyd case does not? Instant decision making. The gun was in his pocket.

Now, as he is dying, he says, I wasn't reaching for my gun. I was reaching for my ID. I don't think there's any need to second guess whether he's telling the truth there. But that's not what the jury's asked to decide of what Mr. Castile's intent was. The jury's asked to decide what a reasonable officer would have thought at that moment. I have a gun in my pocket. I'm reaching into my pocket. He fires seven times and he's acquitted. Third case I want to talk about, Officer Noor. This case that I mentioned earlier is decided in April 2019. It is the first time that an officer in Minnesota was convicted of murder for shooting someone while on duty. So somewhat interestingly to me, so remember I said May 2017 is when Slager pleads guilty.

June 2017 is when Officer Yanez in Minnesota is acquitted. Minnesota is acquitted. July 2017 is when Officer Knorr shoots Justine Damond. She called 911 to report a possible sexual assault. Knorr and his fellow responding car, nor shot once from the passenger side through the driver's side window, hitting her once. Her fingerprints were not found on the car. Here's what's interesting about this case, David. He does take the stand. Interesting. Yeah. And he tells jurors that he and his partner sat in the squad car in the alley they were about to clear the call and leave when they heard a bang after the noise he saw his partner struggling to get his weapon out and his partner had fear in his eyes he then sees a blonde woman in a pink shirt raise her arm and his partner exclaims oh jesus

nor said he put his left hand on his partner's chest extended his right arm to fire at that moment he feared for his life uh quote and there was a threat and my intention was to stop the threat now the prosecution their case was there was no bang. There was no real fear. A woman is approaching in pajamas. She doesn't ever get close enough to touch the car, and you're shooting through the driver's side window over your partner? That is the definition of third-degree depraved heart, reckless conduct.

And he was convicted. Yep. And so that brings us to now. I'm so glad you brought up the, I've actually written about every one of those cases except the Noor case, at some of them at length. And the Walter Scott this is the you know the slager case that you talked about and it is a it's still astonishing that it was a hung jury in that case because um the walter scott was running slowly away from the police officer running slowly away he's what a 50, a 50-year-old man? But here was the testimony that I, to this day, believe, got at least one juror to vote to acquit,

which resulted in this hung jury. And this is what he said, quote, to the jury. In my mind was fear. I was scared. With everything leading up to this it was total fear that mr scott was coming toward me well scott wasn't coming towards him but it's that i was scared in my mind was fear and if you go back to the philando castile case um it's the same you can you can hear in his voice when if you actually listen to the video which i would not recommend it's just so disturbing he panics he he loses his cool in that moment he's

afraid and i think what has happened and and i called this the unwritten law that helps cops go free. And if you go back and you look at the actual legal standard, so let's go to the Walter Scott case. So here's the juror instruction. The defendant, the police officer, does not have to show he was actually in danger. or does not have to show he was actually in danger. It is enough if the defendant believed he was in imminent danger and a reasonably prudent person of ordinary firmness and courage would have had the same belief. Okay? So what's happening is that defense attorneys are doing a very good job

of skipping over that phrase that says reasonably prudent person of ordinary firmness and courage and have drilled in on defendant believed he was in imminent danger. And so what they've done a very clever job of saying, if they were afraid, if I can prove fear, then I can prove that the use of force was justifiable. Not reasonable, but just the existence of fear. That if you can prove the existence of fear, then you're going to maybe at least get one juror, maybe the jury as a whole to acquit you. And this has been a consistent theme in police cases. It's as if the defense has successfully persuaded jurors to read out the reasonable standard, the reasonable person standard, and just look at whether or not fear existed. And that has happened time and time

again. I thought that the prosecution and that cross-examination of the expert witness learned from those cases really well because they then elicited from that expert that we talked about broad, the defense expert, mind you. And it's funny because I heard another legal pundit saying for a moment, she sort of lost her train of thought. She went to the kitchen or something, came back. She thought that this was direct examination of a prosecution witness as the prosecutor was cross-examining Broad to distinguish between a threat and a risk. So good, yeah. A threat, and here I'm going to borrow Andy McCarthy's lovely summary of it from National Review. Police may use force to counter a threat they perceive based on some affirmative act by a

detainee, but they may not use force based on a mere risk that a detainee might pose a threat at some future point. Floyd was unconscious, non-responsive. The possibility that Floyd could have regained consciousness and started fighting the police was a risk. It was not a threat when he was prone on the ground, cuffed behind the back, unconscious and pulseless. Brilliant move by the prosecution, giving the jury words to explain what is otherwise a spectrum. Ah, it's not a spectrum. There's a threat and there's a risk, and they're two different things, not a spectrum of fear. Great, great move by the prosecution. If you can't tell already of how I think this is going to turn out,

I think that will be the difference maker. Yeah. Yeah. I, you know, if I had to guess, I would say there's going to be a conviction on one of the accounts, but we don't know. We don't know. Um, I will say I was stunned in the Slager case. I walked into the attorney general's conference room, uh, just like throwing papers in the air and asking how the hell this could have

happened. And, you know, it was so funny, not a single federal prosecutor in that room was surprised or like they were puzzled by my shock and anger. They're like, it's a jury, Sarah. That's what happens. It's unpredictable and it's really hard to convict a police officer. I do think that sort of what I call the unwritten law that helps cops go free is being

chipped away. That there are jurors who are now taking a look and asking, was this reasonable? But there are two cases, two cases that are just burned in my brain that where this unwritten law locked in. And Philando Castile is one. And if you go back and you look at it, Philando Castile was operating under two separate commands at the same time. One was, get your license and proof of insurance. And the other one is, don't reach for your gun. Okay.

So he's asked for a license and proof of insurance. Castile provides Yanez with proof of insurance card. Castile tells Yanez, I have a firearm. That's when Yanez puts his hand on the holster.

Yanez says, don't reach for it. And then he keeps responding to him. I'm not pulling it out. He's not pulling it out. Yanez screams, don't pull it out, fires. So he had these two things, don't reach for the gun and get his license. And so there's an,

from the standpoint of Castile, Castile's like, I'm not reaching my, I mean, I'm following the directions. I'm following the directions. And has a pellet gun because he has this really interesting, he had this really interesting job where he would shoot varmints in stores. Shoot, you know, like rats or, you know, he would shoot small animals who had infested stores. I never even heard of this as a job. And someone had seen the gun through a window, called the police. The police come.

They tell him to keep his legs crossed, push himself into a kneeling position. When his legs come uncrossed, they scream at him. Then they tell him to crawl towards the police officer. They give him all of these messages like, do not put your hands down for any reason, then crawl towards me. And the guy is drunk and he can't figure out what to do. And he reaches to pull his pants up, which were falling down and he's just shot dead. And again, this guy, he's not convicted.

I'm just going through this. I know this is kind of repetitive, but it illustrates a lot of the reason why so many people were frustrated at these verdicts, because what they were doing is they were establishing a rule that not only if I'm afraid, do I get to shoot somebody, but if I give inconsistent and contradictory commands to a citizen, I'm entitled to resolve the ambiguity that I created myself by using deadly force. And we saw this in the army officer who was pulled over. They're saying, keep your hands out of the car. We need to see your hands.

And they're saying, unbuckle your seatbelt. And interestingly, in that situation, he refuses to unbuckle his seatbelt. The police officers open the door and he's trapped by a seatbelt. He's keeping his hands out of the car and they're like, unbuckle your seatbelt. And he basically says like, no, I'm afraid you're going to shoot me. You can unbuckle my seatbelt. But and that's when they pepper spray him several times. And I think in that situation, he did something kind of smart. Yeah, he did. You know, even if that means getting pepper sprayed, you want to deescalate the situation and be like, OK, I can leave my hands up or I can reach for my seatbelt. Now let's like think through this. And that brings us to the most recent unfortunate shooting

in Minnesota. Yeah. This one is, um, I've watched the, I've watched the, uh, body camera footage, um, seen way too many of these body camera incidents at this point. deceased is trying to resist arrest. That's plainly clear that she believes or appears to have believed that she had a taser in her hand. She threatens to tase the guy, Dante, right. She threatens to tase Dante,

right. She even says taser, taser, taser, which you may have heard police say taser, taser, taser when they tase people in other circumstances. And then, boom, she fires.

Immediately, Wright sort of speeds off in his car, but he's mortally wounded. She looks at the other officers and says, you know, oh, you know, oh, crap, I shot him. And they look at her stunned, you know, like the look on their face is stunned. And then the video that I saw cuts off. And so she has since resigned. She was a veteran of the force. She'd been around a long time. And she's since been, she's been charged. And, you know, this is a situation, Sarah, where a lot of people have asked, how can you possibly confuse a taser with a gun? They don't have the same weight. They don't have the same look.

I mean, and when you watch the video, it's completely obvious she's holding the gun. It's also a highly confused situation. But that's a question that would go to, did she intend to shoot him and set up some sort of deception that she was using a taser, which would be an, a really,

uh, kind of a crazy split second kind of murder decision to make. Or did she really just, was she really that recklessly and grossly negligent? Um, and it appears that she was that recklessly and grossly negligent, but she's still criminally liable if she's negligent and she kills somebody. Yeah, I mean, some of the negligence will turn on.

Her gun was kept on one side. Her taser was kept on the other. You would reach for them with different hands. That goes to negligence. On the other hand, you have two weapons that are both on your body and you're focused on the person and whether they're a threat, you just reach with the wrong one, that's maybe not negligent. Right, right. Now, there's some really interesting stuff, and I sent this into our little Slack channel,

about traffic stops in general. How dangerous are traffic stops? And this goes to something that risk and threat that we, that you just raised, Sarah. And the question is, how, how are police officers trained to view a traffic stop? You know, one of the, you know, as potentially the last moment of their lives or as an overwhelmingly routine event with a very infinitesim of an officer during a routine traffic stop was one in every 6.5 million stops. One in every 6.5 million. This is a part of probably a conversation, a longer conversation for a different time, but this is an argument that I've made for a long time, is that I believe police are not properly trained in risk assessment in a way that soldiers are trained in risk

assessment. And that creates more shootings than are necessary for law enforcement to maintain, you know, for law enforcement, uh, to maintain law and order and for, uh, law enforcement to do their jobs. But that's a, that's a long conversation, Sarah. All right, let's do, I mean, the other super easy, not controversial topic for today, abortion. easy, not controversial topic for today, abortion. So there's a few things going on in the world. Well, really all in the sixth circuit. So Tennessee has asked the Supreme Court on an emergency basis to reinstate a waiting period law. It requires a woman to wait at least 48 hours after seeing a physician to then undergo an abortion. The district judge in Tennessee, interestingly, cited Breyer's plurality opinion in June Medical. This is the one that you and I talked about at length. You have some justices giving one version and then you have Justice Roberts giving a different

version and the lower courts don't really know who controls. And that is in fact exactly how it has played out. You have Breyer saying Casey test is alive and well, and you have Roberts saying, no, it's something less than the Casey test. Um, but he's by himself. So which is it? Well, the Middle District of Tennessee cited the Breyer opinion and struck down the waiting period. There's some weird stuff about this, though. A, this law has been on the books for five years. So this idea that it needed to be struck down immediately, there couldn't be a stay pending appeal, a little silliness. But the Sixth Circuit Court of Appeals also upheld the district court. Interestingly, we're back to Judge Thapar

as the dissenting judge. We've talked about him a lot. In his dissent, he says that the lower court used, quote, the wrong legal standard. When it looked to Breyer's opinion, it should have looked to Robert's standard. That that's the controlling legal rule in the case. I mean, this line was a little much for me. Abortion may be controversial, but following Supreme Court precedent shouldn't be.

Yeah, except there is some question over which one's the right precedent. I don't know how snarky we need to get on that. So that's the first case. The Supreme Court will have to decide whether to address it at all. But again, this will be a shadow docket case. It is up on that emergency basis. This is not where you get a cert petition and you have both sides brief, etc. So who knows? Friday night, we could hear something. David, thoughts on that one? I think, yeah, that one's going to be interesting. I wonder, now, have they decided to go en banc on that? Or are they going straight to the Supreme Court? They've gone straight to the Supreme Court. Their argument is, of course, I forget how many other

states, like a lot of other states, have a 48-hour waiting period. And in fact, the Casey decision had a waiting period. That's what was at stake in the Casey decision. And that was upheld by the Supreme Court. The district judge, however, distinguished this from Casey by saying that, yeah, but in Casey, we didn't have a record. And here we had a full trial.

But in Casey, we didn't have a record. And here we had a full trial. And after the trial, I, as the judge, decided that there was, you know, that there's this balancing test that Breyer talked about, the health benefits to the woman versus the burden on the woman. And the judge said that because of the evidence presented at trial, as distinguished from Casey, she could find that there were no health benefits to the woman in the 48-hour waiting period, and there was a burden. Yeah, you know, that one's, boy, I'm going to punt on a prediction to this because I get the feeling that the Supreme Court is in a bit of turmoil on the abortion issue. And the reason why I say that is they are sitting on, and we have mentioned this case before, they are sitting on a cert petition and have been sitting on a cert petition for a long time on this Mississippi 15-week ban. And so it's telling me that for people, there's not four justices who are confident about this yet. there's not four justices who are confident about this yet.

Now, it could be that they will do what they did after June medical, because remember, after June medical, they kicked some cases back and seemed to indicate that it was the chief justice's opinion that was controlling. So it's entirely possible that they reverse the Sixth Circuit and the trial judge, basically saying, redo this under the chief's standard in June medical. That's entirely possible, not predicting it, but it's entirely possible. a lot of uncertainty about where the Supreme Court is. And it's very interesting to me that we have not yet had a decision. It's just laying there. It's just sitting there, this 15-week abortion ban out of Mississippi. And there is no decision on it at all. It's been going week after week after week. Some of the other big cert petitions that have been going week after week after week, we kind of know why. For example, like Arlene's flowers, um, which is this case involving a, um, florist who won't do a custom sort of floral arrangement for a same sex wedding.

Pretty clear. They're waiting that the court is waiting on the outcome of the Fulton religious liberty case to, to reach a determination. But there's some, there's some interesting what are they waiting on on the mississippi case um so that's that's what i'm interested in the other thing that's interesting is in the case we're about to talk about um involved coming out of the sixth circuit the en banc court used the rober. Yes. So that's why I think it's entirely possible the court just kicks it back to the Sixth Circuit to use the Roberts standard the way it just did in this case called preterm Cleveland versus McLeod. Do you want to talk about

that one? Yeah. So this was a 9-7 en banc decision, so it was pretty close. And this upheld an Ohio law that prohibits a doctor from performing an abortion if the woman becomes aware that her child has or probably has Down syndrome, and she tells the doctor that that is a reason why she is seeking the abortion. Now, David, this gets pretty in the weeds, because when I initially heard that there was an Ohio law that prohibited abortions because of fetal down syndrome, I was like, well, that's clearly unconstitutional. That is clearly a burden on the right to seek an abortion under Supreme Court precedent, whether using Roe, Casey, or anything in between. However, the actual Ohio law, I think,

doesn't do what the Ohio legislature wanted it to do. No. And that's where the majority hangs its hat, albeit a little dicely. But because it doesn't prohibit you from getting an abortion, their argument goes, it only prohibits you from telling your doctor why you're getting an abortion. And they're arguing that might implicate some First Amendment problems, but you didn't bring us First Amendment problems. You brought us abortion problems, and therefore, your right to have an abortion isn't affected whatsoever, so this is fine. Yeah, it's basically, you can go and get an abortion in Ohio, just if you tell the doctor you're doing it because the baby has Down syndrome, then the doctor can't do it. And so the answer then is just don't tell the

doctor. If a woman wants an abortion, they don't talk to the doctor about the reason. They just ask for the procedure. Which clearly isn't what Ohio intended, by the way. Yeah. Well, it's interesting to me because the statute is crafted in such a way that it almost feels like maybe the legislature knew what it was doing, but was going back to the public, sort of the pro-life voter, and saying, hey, we banned abortion for Down syndrome. abortion for Down syndrome. Because, you know, the law says what it says. It's not like it's accidental. It just feels like some, yeah, there's some, it's some very clever drafting, which seems almost custom designed to achieve this particular result under a, you know, relatively narrow reading of Casey. But also where you would have a legislator go back to the home district and say, I just voted to ban abortion of Down syndrome children, when that's not what's outlawed at all. And you start to then actually wonder, how many cases are like this? You know, how many cases?

So anyway, it's a very niche. It's a very niche decision. So the question will now turn, if it goes to the Supreme Court, on, in fact, I think, whether not being able to discuss your reasons for seeking a medical procedure with your doctor is an undue burden on the right to have an abortion, which honestly, I feel like the majority didn't discuss nearly enough. I don't know who's being too clever, more too clever by half. The Ohio legislature who passed this or the nine judges on the Sixth Circuit who upheld it and were like, oh, no, it's just a speech problem, not an abortion problem. Look, again, I'm not passing any moral judgment on this law or abortion as a whole. I'm just talking about what Roe says, what Casey says, what June Medical says, what Hellerstadt said, what Supreme Court precedent is. This feels odd.

Well, you know, one thing that they did pretty clearly is that they did apply the Chief Justice's opinion in June Medical. So, flat out, this is the test that they applied. First, a law regulating abortion is valid if it satisfies two requirements. First, it must be reasonably related to a legitimate state interest because we are to apply the traditional rule of deference to the state's medical and scientific judgments. This requirement is met whenever a state has a rational basis to use its regulatory power. Second, the law must not have the effect of placing a substantial obstacle in the path of a woman seeking an abortion of a non-viable fetus. And then under the law of the circuit, which is not the Roberts opinion, it says under the law of their circuit, a woman faces a substantial obstacle when she is deterred from procuring an abortion as surely as if the government had outlawed abortion in all cases, which seems to be even narrowing Casey more than Roberts.

Even if a law regulating abortion is unconstitutional in some applications, the law remains facially valid so long as it does not impose an undue burden in a large fraction of the cases in which the regulation is relevant. So that's the test that they applied. If the Roberts test is the test, this case probably, you know, it'll go up on cert. I would expect it to go up on cert. This case will probably be cert denied if the Roberts test is the test, is my my view but this is a lot just coming at this there from the position of sort of thinking through pro-life jurisprudence for years and years and years this is why casey in many ways causes pro-lifers to tear their hair out this is

what happened to to my hair is that what you're left with with casey is this incredibly these incredible marginal legal challenges to abortion that are run through legal tests that are more difficult to decipher than like the Dead Sea Scrolls. And you just don't know where the law really, really is here. And so you're left with these little cases, these cases like this. The width of the hallway in a clinic, what are your admitting privileges for a local hospital? What are your admitting privileges for a local hospital? What knowledge does the doctor have for the reason for the abortion? It's just all of these little, tiny, little things that are run through an incredibly vague legal test. And it's frustrating. All right.

Well, before we bring on producer Caleb, two quick updates. One, Speaker Pelosi says she has, quote, no plans to bring the bill to expand the court to 13 justices to the floor. So that's the end of that. That prediction came true an hour after I said it. Second, the Biden DOJ has asked the Supreme Court

not to hear the challenge to the all-male military draft. We discussed that. And David, if I remember myself correctly, I said, they're not granting cert on that. The fact that the Biden DOJ just said don't grant cert on it. I think my prediction has gone from pretty good prediction to a quite good prediction. We'll see. Pretty good. So quite good is better than pretty good? Yeah. Okay. I would say near lock. I think it's a near lock now. A near lock. When the solicitor general, I mean, the court generally, whether it's causal or not, there's certainly a correlation between the cases the Solicitor General thinks the court should take and the cases the Solicitor General thinks the court should not take. If they don't think the court should take the military draft, it's not happening. Yep.

All right, but now we have the most important issue of all, perhaps, for AO listeners, at least if your tweets and emails are any indication. Yes, we changed the intro music. Producer Caleb is shaking his head. Producer Caleb, welcome to the pod. We're so thrilled to have you here. Oh, I'm so happy to be here. Well, I'm going to channel an email that I just got. Well, you channel that.

I want to ask producer Caleb how we started. Talk to us about the evolution of the music on the Advisory Opinions podcast. Talk to us about the evolution of the music on the Advisory Opinions podcast. Longtime AO listeners know that for the first 12 episodes, we used a number of classical pieces to start in the show. Then we settled on the pop rock anthem that most listeners are familiar with and licensed that music for 12 months. When it came time to secure those rights for another year or go in another direction, we chose another direction. David, read us a sampling, if you will, or a representative sample. This is the, I'm just going to go with a subject line.

Really? Really? this is this is the uh um i'm just gonna go with a subject line um really question mark exclamation point that's a email received today really question mark exclamation point so caleb really why the big change from um was it ron sw who says, are you ready for this? Well, it's April who says, you ready? And Ron responds, I was born ready. Okay. Why the big change from Ron Swanson to what's best described as NPR? Well, I don't see it as a big change. I see it as a return to our roots. I like the pop rock anthem. I found the pop rock anthem. At the same time, I feel like the music we're using now better captures the tone and feel of this podcast. I know there will be those who disagree with me, but I stand by the decision. So do you think, I'm just going to play prosecutor here for a little bit. Do you think the classical music works better for a podcast, which features a co-host who sometimes sings things like never going to get it, never going to get it, never going to get it? Or what was the, was it Missy Misdemeanor Elliott that you sang? Yes, I did. Yes, I did. Yeah.

Yeah. How did that go, Sarah? What was that that you did? We don't need to, you can find it in the podcast. It's recorded. What's the question? All right, Kayla. Given that, did you get complaints after you switched from the classical to the pop rock? Yes, we did. A number of people were upset when we made that change. I've been in this industry for almost a decade.

You cannot make everybody happy. Do you think we'll change the music again in a year? Just to see how many people we can anger every April? That's one strategy for growing an audience. Caleb, when I told you that we had gotten a dozen, two dozen tweets and emails, what did you say back to me? Probably best not to repeat that. Wow, that sounds dismissive. All I'm going to say, Producer Caleb, this is your call, is that I think it would be fun each year to do maximum head-snapping change so that next year, this time, we're talking about

why did you switch from classical music to Guns N' Roses' anthem, Welcome to the Jungle? We cannot afford that. Uh, you know what? I actually thought David was going to say something else and I was going to disagree with him, but actually I agree with what David just said.

I think that we should change the music every year. Ha. Yeah. But guys, here's the like secret to this whole thing. David and I, it's Caleb's call. Caleb's call. That's why he's the producer.

I'm not a dictator here. I did seek your advice and consent. I thought it sounds cool. I thought it sounded cool. I liked it. I think it sounds, it has a it sounded cool. I liked it. I liked it. I think it sounds, it has a little bit of like a serious and ominous tone. I actually think it's more contemplative and uplifting. I also prefer it,

but I couldn't really. So it's weird. I prefer it when I'm just listening to, like if I were listening to Spotify or something. But with the pod, I guess I don't know. That's why I like the idea of changing it every year. We keep this for a year. Because, Caleb, to your point,

we're going to get 20 or so tweets and emails next year, and I will enjoy that more. We derive joy from different things. I think either Welcome to the Jungle or the opening guitar riff of Sweet Child O' Mine. We definitely cannot afford that. Caleb, would you say this is your favorite pod that you currently produce or have ever produced or could ever dream of producing?

Well, I report directly to Steve and Jonas, so I plead the fifth. That's unacceptable. We just had a live comment from one of our esteemed Dispatch colleagues

who proposes a Cardi B song to incite maximum vitriol. All right. Well, with that, we're going to look into how expensive the rights are to WAP. And we'll get back to you, listeners. Thank you, producer Caleb, for joining us today. And thank you, AO listeners. I'm taking over David. And thank you AO listeners. I'm taking over David's role to end this podcast. 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?

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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, 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.