Advisory Opinions - Understanding the Rittenhouse Verdict

Episode Date: November 23, 2021

On today’s episode, David and Sarah take a deep dive into the Kyle Rittenhouse verdict with Damon Preston, Kentucky's Public Advocate and a criminal defense attorney with almost 30 years of experience. They discuss self defense law, the difference between the Rittenhouse trial and the trial of Ahmaud Arbery's killer, and the ways in which the criminal justice system could be reasonably reformed. Also, David exults in Mississippi's stinging defeat at the Supreme Court as the court turned back the Magnolia State's greedy attempt to keep Tennessee from drinking water from its own wells.   Show Notes: -Mississippi v. Tennessee -French Press: “Kyle Rittenhouse, Open Carry, and the Breaking of Self-Defense Law” -David in The Atlantic: “Kyle Rittenhouse’s Acquittal Does Not Make Him a Hero” Learn more about your ad choices. Visit megaphone.fm/adchoices

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To hear them in person, plan your trip at tnvacation.com. Tennessee sounds perfect. Welcome to the Advisory opinions podcast this is david french with sarah isker and we are going to cover a lot about the kyle rittenhouse verdict today we've got a great guest for you his name is damon preston he's a friend of mine he's as i'm going to go through his bio in a bit but he he's the Kentucky public advocate. In other words, he runs the public defender system for the entire state of Kentucky. And unknown to y'all, he's a repeat guest of Advisory Opinion.

No, no, actually, he's a repeat guest originally of the Dispatch podcast. We recorded a whole podcast with him, Sarah and I did, about what the written house verdict might be. And then the written house verdict comes out. And to have a whole podcast about what it might be when we knew what it actually was, not great podcasting content, Sarah. So we punted Damon to today. I think you're going to really enjoy the conversation that we had reflecting on the verdict and what it means, talking about the trial of Ahmaud Arbery's killers. And so that's coming in a moment. But before that, Sarah, my goodness, the Supreme Court kind of let us all down a little bit today, didn't it? So we were told on Friday that there would be an opinion hand down day on Monday. This got everyone chittering that we were going to either get the execution case that you and I have talked about, about having the pastor in the in the chamber out of Texas, or we were going to get the Texas SB8 abortion case. Both

of those were on an emergency posture. The court was under some time constraint, though not actually any time constraint, but it felt that way. And I thought that that was all an extremely silly conversation because clearly this was going to be the Texas abortion case. Obviously, I had predicted that it would happen right before Thanksgiving. And here we are right before Thanksgiving. A little cul-de-sac, by the way, David. I am actually back in Houston in my childhood home for Thanksgiving, recording this podcast, surrounded by a shrine that I have built to myself. I have Douglas Adams'

Hitchhiker's Guide to the Galaxy here, my original copy of All Too Human by George Stephanopoulos. I mean, there is a lot that explains who I am. Also, the book Red is Best, which was my favorite book as a child. That was the book that I needed

read to me many times before I would go to sleep. So yeah. Was that a political book for a young Republican? I believe it's actually Canadian. Oh, okay. But you know, the red barrettes make my hair sing, the water tastes better in the red cup,

all of these things. Anywho, back to it. So here we are, Monday morning, 10 a.m. I mean, 9.56. I'm getting very excited. Well, 8.56 Central Time. And then 10 a.m. comes and Mississippi versus Tennessee. This was just a regular hand down. Now, it was original jurisdiction. You and I have talked about this case before. It's a riparian case. This is water rights between Mississippi and Tennessee. But a huge disappointment.

But it was 9-0, unanimous. Chief Justice writing. David, tell us about your state's victory over Mississippi. Yeah, those greedy Mississippians trying to hoard all the water for themselves. This case, if you remember it, was about pumping groundwater for the city of Memphis from what's called the Middle Claiborne Aquifer. It is a resource, a water resource that's beneath eight states. So Tennessee was pumping water that, to quote from the syllabus of the case, Mississippi concedes are located entirely in Tennessee, but siphon water away from Mississippi. And Mississippi said that you're taking our water. Supreme Court was not having it from Mississippi, absolutely not having it. So it said that the

waters of the Middle Claiborne Aquifer are subject to the judicial remedy of equitable apportionment. In other words, there's a fair allocation of water analysis between the states and that the court completely rejected Mississippi's argument that had a sovereign ownership right to the water underneath it. or hadn't really sought equitable apportionment at all, the court didn't address whether Mississippi should be granted leave to amend. In other words, permission to revise their complaint. And just flat out, rightfully, Sarah, how dare you, Mississippi, dismissed its lawsuit against my beloved home state. And I think we can all say justice was done. I accept that. I mean, look, on the one hand, someone put this on Twitter and I thought it

was exactly right. Maybe the Supreme Court was just doing us all a big favor because if they had released the SB8 decision right before Thanksgiving. It would have ruined a lot of Thanksgivings. And you know what? I do have a mixed family Thanksgiving. So actually, thank you, Supreme Court. You probably did save my Thanksgiving. Well, unless, Sarah, unless they're waiting till like, say, I don't know, a Wednesday morning, or how about a 5 p.m. Wednesday evening, 7 p.m. Wednesday evening. In that case,

they'll just nuke a whole bunch of people's Thanksgivings from orbit. But they'll have a nice one. But they'll have a nice one. This is relevant, though. We are actually not going to record this Thursday because it is Thanksgiving. That being said, David, I assume if SB8 comes down on Wednesday,

we will be recording an emergency pod. So that's going to really throw all of you guys off. Are you now hoping for SB8 before Thanksgiving, ruining your Thanksgiving, but you get an emergency pod? I don't know. It really cuts both ways. I don't think it cuts both ways. I think the proper answer is you listen to the emergency pod while eating Thanksgiving as a family. In silence, yes. Everyone's just... In silence, exactly.

All right. So let's move on without further ado to our conversation with my friend, Damon Preston. Also my law school roommate. Also career-long public defender. Got his start as a public defender in the city of New York. I remember the first year of Nancy and I's marriage, we lived in New York, and we would go visit our guest all the time. And he had his apartment above, and correct me if I'm wrong, Damon, above a Polish funeral home, correct?

That's right. Not just any funeral home, but a Polish funeral home. Specifically a Polish funeral home. So Damon has been a career-long public defender. He's now a political appointee in the state of Kentucky. He's the public advocate for the state of Kentucky. And so when we're thinking about the Rittenhouse verdict, And so when we're thinking about the Rittenhouse verdict, we're talking about the trial of the McMichaels and the trial of the killers of Ahmaud Arbery, self-defense, practice in state courts. I couldn't think of a better guest than my friend Damon, who's also the commissioner of our Fantasy Baseball League.

And so we've known each other. This is 30 years, Damon, this fall, 30 years. And for every last second of the 30 years, I knew you wanted to be a criminal defense attorney, and you've been a criminal defense attorney. So welcome to Advisory Opinions. And I'm just going to launch with a question. All right, that'd be great. Thank you. So the question is, were you surprised by the Kyle Rittenhouse verdict? If so, why? If not, why not? I think I think the answer to whether I was, uh, legally, I was not surprised, um, just because the prosecution in the case just didn't, didn't make the case, um, to, to find someone guilty when a self-defense is raised, the, the burden of proof remains on the prosecution. So essentially the prosecutor,

the state has to prove beyond a reasonable doubt that the person was not entitled to defend themselves as justification under the law. Prosecution in this case probably just didn't make that case. It was a close case. I certainly could have seen it come out the other way on the self-defense question, given that Mr. Rittenhouse could have been considered an initial aggressor by kind of creating the tension. But no, legally, I think probably they didn't just prove it beyond a reasonable doubt. A little, a part of me, though, is a little surprised that the outcome in this case is just a complete walk by the defender. Some states, including the state where I practice, have a principle called imperfect self-defense, where if you thought you needed to defend yourself, but you really didn't, that it was a negligent or reckless opinion that you needed to defend yourself. There's a middle ground where you're not convicted of the primary offense of murder,

but you're also not acquitted, that there's a middle ground. Wisconsin doesn't have that. And so I guess there was no middle ground. but my sense in watching this is there should have been some kind of outcome other than either he goes to prison for the rest of his life or he is acquitted and everybody trumpets that this was an injustice that he was even prosecuted. So it is surprising just kind of as a citizen that this was the only, on this outcome. But the final way that I wasn't surprised, and this does come from doing this for 30 years now, is there are essentially two levels of justice in this country. There's the justice that's available to those that have expensive lawyers and that can be released pretrial and that come before the court with a certain status. And then there's a separate level of justice that's available to most others that are in the criminal justice system. And the simple fact is a lot of my clients that

I've had over the past couple of decades would have heard a different verdict. I completely believe that there are other people that had they been charged on these same facts would have been convicted. And so that caused a reaction within a lot of the communities that I'm a part of that, yes, maybe the system worked here if the prosecution didn't meet its case. But we've seen so many cases that are similar where it's a different verdict and a different outcome. I'd like to talk about both the specifics of this case and sort of the general critique you just made, which is actually sort of a critique I made recently in a discussion. I don't want to call it a debate with Elizabeth Brunig on the New York Times argument podcast about the death penalty, where I basically said, I think there's kind of a way in which you can be too rich to be executed in the United States. Just the ability to just the ability to afford the kind of legal defense that so many other people can't. But let me talk about the part of this case that I think was the key, key issue, and everything flowed from that. And to me, the key

issue was that initial shooting when a man was rushing Kyle Rittenhouse. Kyle Rittenhouse was retreating. This was all on video. And Kyle Rittenhouse turns and shoots the man at very close range who's rushing at him. Now, Kyle Rittenhouse had testified earlier that he had heard the defendant threaten his life. But this guy is rushing at him. There's no evidence in that moment that he's armed and Rittenhouse shoots him and kills him. And to me, this was the key issue. When is it reasonable? Because the standard is for you to use deadly force, there has to be a reasonable belief that you're in imminent danger of death or grave bodily injury. When is it reasonable to believe that an unarmed person presents such a danger?

Because we know it's not a black and white rule that says, if you're armed and they're unarmed, then you can't use deadly force. That's not the way this works. In your experience, how have juries made that decision? What are the grounds for making a decision that an unarmed man presents a risk of deadly force to an armed man? I don't think there's any clear answer to that as far as how common it is because every situation is different. The key is I think it should be an objective standard, but I think a lot of times it's not. The tendency is to look at this particular individual, and in this case, Rittenhouse testified and certainly said he was scared, said he feared for his life, said he had to take this, believed in the moment that he had to take this action to defend his life

or he would have been subjected to serious injury or death. So it's all about the circumstances. And here, I think it probably comes into play. We'll know eventually what one or more of these jurors is going to speak and we'll know what was important to them. But at this point, I wonder if they did not consider not just that interaction, but also the larger context of this, that there were riots or there were dangerous, this was a dangerous situation overall. And you've got a 17-year-old kid who's there. And it's easy to say this 17-year-old kid in that moment did what he thought he needed to do. And that's not really the legal standard. The legal standard should be what would a reasonable person do. And it should be the fact that the lack of, the person that's, the fact that someone is not armed should be a key factor, I think, because there is this principle of proportionality.

You can only respond in proportion to the threat. If someone comes up and punches you with a closed fist on your arm and causes a bruise, you can't pull out a gun and shoot the person and say, well, I was just defending myself because I didn't want to be punched. There has to be proportion. And that gets at your question on if the person's not armed, as far as Rittenhouse knew at the moment, and is chasing, and this is a public interaction. There's no, nobody's being cornered. This isn't a captive situation. Was it a proportional response? I think the jury found that it was. But again, I wonder if they looked more at the specifics of this more than the objective, which I think the law would would expect them to be more objective about it, but I wonder if they looked subjectively at Kyle Rittenhouse himself and said, this person was scared and was justified in their actions. Do you think that the prosecution screwed up or that they didn't have the facts to begin with?

Why did they lose this case? I think the prosecution wasn't strong, for sure. I think the prosecution wasn't strong for sure. I think maybe the prosecution took for granted that the idea that this person got their AK-47. Is that what it was? No, it was an AR-15. AR-15. They got the AR-15 and went to a riot, I think the prosecution took for granted that people may have been offended by that, that the jury may have judged from the very beginning that Kyle Rittenhouse was up to no good. And therefore, on that principle that you can't, the initial aggressor

can't later claim self-defense, I think maybe they took for granted that that was going to carry more weight than perhaps it ended up doing. And then when it comes to the threats, particularly the second and third shootings, that those two men, one who was fatally shot and another who survived, you know, they were not a threat to Rittenhouse, except to the point that they thought he was a threat to them and to everybody else around. They were aware of the initial shooting. They thought that Rittenhouse was the threat, and they were acting in response to that. I think the prosecution could have made more about that. And then the other thing I have to mention about the prosecution is the gun charge. The case was brought.

The opening statements were done. The case was delivered with, at least in part, on the principle that he was illegally possessing a weapon, that not only is he there perhaps up to no good or for political purposes, but he's even illegally possessing a weapon. And then when the time comes to give instructions to the jury, we figure out, and in fact, the prosecution concedes that, in fact, under Wisconsin law, this gun was not the type of weapon that is illegal in that context. So I think that was a screw-up by the prosecution in that they should have figured that out at the beginning and then framed the case differently without that illegal possession charge. Because while all of those instructions conferences were outside the presence of the jury, the jury, they're smart people. They

know what the initial charges were. And the judge, in fact, said to the jury on multiple occasions, count six possession of a weapon, that is no longer before you, that you're no longer called to decide that. Well, they know that the judge didn't find him guilty without making the decision. So the jury knows, OK, that was dismissed. That was a bad charge. That was the prosecution's already won one. So when we go into the jury room, the score is already one to nothing for the prosecutor. And that that was a screw up that could have affected the momentum and just the general way that the jury viewed the case. A lot about this was an unusual self-defense case, at least for me, in that I absolutely believe that Kyle Rittenhouse was a chaos tourist,

as the prosecution tried to prove. They convinced me of that, beyond a reasonable doubt. But that's not the standard for self-defense. And when you get to that first shooting, where there is someone charging him, that person's been yelling the N-word. We know now that that person was out on bail. That doesn't go, I think, as much as the defense tried to make it out, that it was reasonable for Kyle Rittenhouse to think that his life was in danger because this person was a felon who could not be in possession of a gun, and therefore he was trying to illegally seize Rittenhouse's gun,

all things that Rittenhouse could not have known at the time, and it doesn't go at all to whether it was reasonable. But I think if, let's assume for a second that I think that the first shooting was in self-defense, that he had a reasonable fear for his life. The second two shootings, as you mentioned, are really then legally quite interesting because they don't know what happened in that first shooting because there is chaos all around. Rittenhouse, let's say legally, had the right to self-defense in that first shooting. Now he has moved on to a different venue where these people think he is the aggressor. He is not the aggressor legally. They believe that they have justified force. He believes that he now has justified force to continue defending himself. You and I have talked previously. And as you said, it cannot be the case that both sides legally get to shoot one another.

parse that. If both sides reasonably are in fear for their life, reasonably believe that they are acting in self-defense, that they are not the aggressor, I am at a bit of a loss for what happens in a chaotic situation like this after the first shooting. Yeah, I don't think there is a good answer because the law doesn't anticipate this type of cascading circumstances. And you're right that even if it was clearer, you know, you're absolutely right. This was chaos. This was stuff happening very fast. People knew they were going to a tense situation. Emotions are running high for reasons unrelated to this. And then this happens in the middle of that. Even if it was clear that Rittenhouse shot the first person, and then let's say the crowd was angry at him for that, and a mob starts assembling around him saying he just shot this man.

This wasn't quite that well-defined, but it was essentially that. In that circumstance, they think they're taking out the threat. And Rittenhouse is saying, all of these people want to kill me. What are my legal rights? I think it's very unclear in that circumstance. And it could be, while it's hard to imagine that the law would say there's a circumstance where everybody is justified in killing the person across from them of acquittal in that the law does not, should not, incarcerate and exact punishment against someone until there's proof beyond a reasonable doubt that what they did was a criminal act. And it could be that in this circumstance, no one was committing a criminal act. That's some squid games right there. was committing a criminal act.

I think- That's some squid games right there. It is. And to go back to something I said earlier about the different systems of justice, it could also be looked at everyone is committing a criminal act too. And so in a different circumstance, I can imagine law enforcement pulls up the van

and throws everybody in the back and says, you're all going to jail. But technically when the elements of the crime and the opportunity for justification defense are applied, maybe it is that nobody's responsible for what they did there, which is hard to believe. You know, there are examples in the law where there are such a thing as legal gunfights on both sides. And one of the prime examples of this and most tragic examples of this is the Breonna Taylor situation. So Kentucky is a standard ground state. Police come barging in. Breonna Taylor's boyfriend doesn't know they're police. So someone has just knocked down your door, you don't know that they're police,

you have no way of identifying them in the darkness, you have a legal right to use deadly force to defend yourself. Then on the other side, the police, once they're fired upon because they're executing a search warrant, they have a legal right to use deadly force when they're fired upon

or they detect that imminent threat of grave bodily injury or death. That was an example where you have these two legal regimes colliding with each other. And I feel like the second and third shootings in the Kyle Rittenhouse case were that as well. If those guys had killed Kyle Rittenhouse instead of being wounded and one of them killed, one of them wounded by him, their defense would have been incredibly compelling, which is there is an active shooter. We've heard the gunshots. He has been identified. He is still armed and dangerous. And there's a whole different way in which that narrative unrolls that says these guys were heroic in stepping up to try to stop this active shooter. And so this gets to something that I have been making a lot of

arguments about, about how unbelievably reckless and foolish it was to go down there in that hyper-tense situation with an AR-15 to begin with. And here's the irony, Damon. The reason why the first victim was a mortal threat to Kyle Rittenhouse at the end of the day was because Kyle Rittenhouse had a gun. And so the gun itself, because Kyle was afraid it was going to be taken from him and used upon him, the bringing of the gun itself turned into the reason to use the gun to commit an act of deadly violence. I mean, that's how messed up this entire situation is. I don't have a question there.

I'm just like, that's some messed up stuff, Damon. Come on. Well, I think one of the things, one of my roles as public advocate in Kentucky is to try to work with the legislature on reasonable criminal justice policy. And Sarah used the phrase chaos tourist. I think there is a place here for some legal reform to maybe address this issue of showing up armed to areas where you have no personal interest. Uh, you're, you're showing up for basically as a tourist, as a sightseer, but with some feeling that I'm going, I'm not a deputy, I have no law enforcement,

but I'm going to help protect this business. Um, I think, I'm not sure that the law should, that that shouldn't be looked at as something to discourage. But at the same time, to a certain extent, that goes against the founding of the country of picking up arms and protecting your neighbors. And so, so I don't know how it could be addressed, but you're right. It just seems it's bizarre that that's the way it is. Yeah, I mean, two people are dead who shouldn't be. That's right. And no one may be legally, criminally responsible for that. But morally, there's two people who are dead.

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$49 annual fee applies. See Home Club for details. I want you now to make us feel better as we go down to Georgia and the shooting and killing of Ahmed Arbery and that trial, which is ongoing still. Also, three people claiming self-defense. Can you walk us through what's different about this? And again, I need you to tell me that it's different and that the outcome will be different. So I do believe, if I were predicting, I do believe the outcome will be different, but it's not for sure, for sure. Mainly because of kind of the third answer I had earlier about the different systems. I'm very concerned about the effect that race is going to play on that decision. But it is different. Here you have a person who, you don't have a protest, a riot situation. You have a man simply doing his own

thing on the road. Is he jogging? Is he curious about the house under construction in the neighborhood? Whatever he's doing, he's doing his own thing. And three other men take it upon themselves to decide that he is guilty of these other crimes that we have no evidence he's guilty of, but we'll just act like we do. And then pursuing him and under any interpretation, initiating the encounter and raising the stakes of what happened. I think that's distinguishing. And for me, I have to think the jury is going to look at it and say, what else could Arbery have done? Because he tried to get away from them.

They saw that as further proof of criminality, when in fact it's a completely natural response. I've got three armed guys in the pickup truck or two pickup trucks running after me. I'm going to try to get away from them. When that didn't work because they kept pursuing, eventually he tried to fight back or tried to go towards them or tried to assert himself a little bit. And at that moment, they decided, OK, he's a criminal because he's running and he's a threat because he's charging. Therefore we, we can shoot this guy. Um, that's just like where the frame is, is the frame of reference in the 10 seconds before they shoot. And there's this guy coming at them and they fear similar to

Rittenhouse that if he gets their gun, he'll turn it on them. Is that the frame? Or do we expand that frame to be, you know, you chased him down in the first place when he tried to leave, he couldn't. And so now he's turned around on you. And now you are simply at the mercy of whether who can overpower who for the gun. Well, you've, I'm sure you've previewed the closing arguments. That's exactly going to be the defense closing argument is that at that moment in time, these men were threatened. They had the ability to defend themselves. And again, to David's point earlier, they could have been disarmed. Arbery could have come to them and gotten their weapon, and then they would have been the victim of violence, and so they can defend themselves against that. That would be the

defense argument. I just think it's a tougher argument in the Arbery case because clearly they initiated this. No proof. When the defendant testified last week, he clearly said no weapon, no direct threat. I thought the cross-examination was pretty effective of him. He was well prepared for direct, as any good defendant would be. His lawyer had prepared him. But on cross, I think the concessions he had to make, presumably because they were truthful, across, I think the concessions he had to make, presumably because they were truthful, I think it makes it a tough case for the defense. So I believe, I don't feel the same way about the elements in that case. I believe the elements, when the jury applies it, they're going to say these were the initial aggressors. Arbery was simply trying to get out of the situation.

was simply trying to get out of the situation. He was not the initial aggressor here, even if he started the discreet last interaction, he was not the initial aggressor. That's what I believe, but I would not be surprised. If the question is, would I be shocked? I would not be surprised if they come back. Because just to quickly go down a different road here, the standard is, is it reasonable? And this is where I think race could come into play is when you've got a predominantly white jury deciding, was there the perception of threat by these white guys looking at an African-American man, perhaps angry and coming at them. That's where I think races may come into play here. And they may say, yeah, this was an angry black man

and they were reasonably scared and they took action. I hope race doesn't play that role in the jury room, but I would not be surprised if it does. And when I look at that case, because the situation here is they chase him. All they've seen him do is run. All they've seen him do is run. And then in their initial statements to police, which, by the way, they were not charged.

Yeah, I mean, that's another thing to get into here is the system of justice. You want to talk about two systems of justice? This whole thing wouldn't have ever really come to light, but for one of them releasing the video that they took. Right, right. So in their initial statements to police, they said, well, they just wanted to stop him to question him about some break-ins.

Well, as a private citizen, I don't get to do that. If I'm worried about, if I saw you walking, Damon, around a construction site, I don't get to pull out a gun and say, hey, stop. I want to talk to you about this. And they didn't even see him around the construction site. They just assumed that he might have something to do with break-ins. And then they chase him, and he's looking at an armed man,

and he's been cornered. What does he do? And I think you're right, Damon. I think that what they're hoping, because there's no real, in my view, there's no real reasonable case for acquittal here, because there's no reasonable case to be detaining Ahmaud Arbery as an armed citizen. And so if there's no reasonable case to be detaining

Ahmaud Arbery as an armed citizen, what you're doing is you're committing a crime against Ahmaud Arbery by brandishing a weapon against him. And the right of self-defense locks into Arbery. against him. And the right of self-defense locks into Arbery. You know what this reminds me of, and just to sort of take a little bit different example, is imagine I'm robbing a bank and someone grabs my gun. Well, I can't shoot the person grabbing my gun when I'm robbing a bank because I say, well, if he'd taken my gun, he'd have killed me. Well, you know, the frame question, if we limited the frame to only that moment before they grab your gun, you could shoot them. That is, you know, the law of self-defense. But if we open the frame up to why you were there in the first place, you were committing a felony. Then the whole frame switches in terms of who has the right of self-defense. But I think Damon's right. I think this has kind of come down to which frame the jury wants to accept.

Right, right. Well, Damon, you've been incredibly generous with your time. As we mentioned in the opening of the podcast, you've already recorded a podcast with us. We're sorry. You've already recorded a podcast with us. We're sorry. We're so sorry. We recorded a pod with the Dispatch Pod on Friday with Damon, all about what the jury might do in Rittenhouse.

And then the jury goes and does what it did. And it was a totally outdated podcast, but we thought we'd bring Damon back. I should say for the record, David, as I recall, the three of us got everything exactly right before the verdict. And so we could have played it just to demonstrate how correct we were. But we didn't. Well, we're too modest for that, really. I mean, honestly, until this moment, until this moment, we were too modest for that. But so let me let me ask you a last question, then we'll let you go.

So you've been a public defender for 30 years and you opened with a pretty provocative statement that there are sort of two systems of justice in this country. What can and and I think most listeners would reasonably say, look, if I can afford affording a top, top notch attorney is going to give me an advantage. Otherwise, why do you spend the money? Right. This is something that's super instinctive to people. What are some just basic reforms in your mind? I know you've thought about this a lot. What are some basic reforms in your mind that you could that could narrow that gap? Injustice. There are two, you're right. I have thought about it a lot. I've got album sides on this, but I'll give you two quick ones.

One's obvious, one's a little more in the weeds. One obvious is there, and this is self-seeking as a public defender and as a head of a public defender organization, but we need more money for defense, both for public defenders themselves, but also for experts and other things that would help the defense. Because when you spend that money for a top-notch criminal defense lawyer, what you're buying, you are buying expertise, but that expertise, your local public defender office, wherever you are, has that expertise. All we do

is criminal law. I do everything from driving without a driver's license cases all the way to capital murder cases and everything in between. We've got the expertise. What you're buying is you're buying time. You're getting a lawyer who will have the time to look through the cases, to frame the cases, to study the evidence, test the evidence if necessary. in every area of anyone that's listening to this has too many cases and the funding is too low. And so they're spending their time going from case to case. And most cases, 95 to 100% of the cases are going to be resolved through guilty pleas. And so it becomes triage. Someone that I worked with a few weeks ago referred to MASH, which is a little, it's an outdated reference for many people don't remember the TV show MASH, but in MASH the phrase was meatball surgery. That you just, you have so many people that you have to take care of, you're doing what immediately you need to do to resolve

it. And so one improvement in the system would be giving defense attorneys more time to work on these cases, and that only comes with more funding. The Rittenhouse lawyers, who knows how many hundreds of hours they spent preparing for that trial. If a similar case went to trial with a public defender, they're probably going to have far less, maybe 10, 20 hours total over months to spend on that case. So that's number one. The second thing more in the weeds and more policy oriented would be bail reform. In America, a lot of times the punishment is exerted against the defendant from when they're first charged because they're put in jail and a bail is set at an amount they can't make. And so they end up staying in jail for weeks, months, sometimes years at a time in serious cases. And a lot of times the cases ends up being resolved

by plea because the person already has a substantial amount of jail time. And so they'll enter plea sometimes literally for time served if it's a less serious case. But in a more serious the person already has a substantial amount of jail time. And so they'll inter-plea sometimes literally for time served if it's a less serious case. But in a more serious case, maybe it's just so they can see the parole board sooner and go ahead and get a defined sentence. So when someone is out before trial, they can help defense counsel prepare. All those limitations on time, you have a multiplier because if the defendant's out, they can help find experts. They can help talk to witnesses and all of that. So those two things, more funding for defense and bail reform. Now we have to do another seven hours because I

have questions. First, do you see a problem in and of itself with how many of these cases are pleading out? Because I know that a number of people, I'm thinking Clark Neely at Cato, for instance, he has a major beef with what he feels is a arm-twisting, non-trial system that we have. So I want your thoughts on that. And then second, on the bail reform, we now have jurisdictions, And then second, on the bail reform, we now have jurisdictions, a lot of jurisdictions that have tried that. And we have, you know, five people dead in Waukesha because of bail reform, arguably. And so I want your thoughts on how that system can work while still protecting the public. What was your first question? Say again. The pleading out. Yes. The reason I forgot it is because you asked, do I think that's a problem? And it is the single biggest problem in the criminal justice system. A lot of problems go undiscovered because very few cases go to trial.

And the reason that happens is because the prosecution in every jurisdiction over time has had so much, has so much leverage over defendants. There are enhancements, there are additional charges. Single acts can be charged with three different criminal statutes that can then run consecutive and it increases the possible sentence. statutes that can then run consecutive and it increases the possible sentence. And so cases will plead out. When that happens over time, when 95 to 99% of the cases plead out, it affects law enforcement practices. They don't prepare a case knowing that it's going to go to trial and so that it becomes lax and perhaps investigation's not done. Criminal defense lawyers, our own attorneys within the public defender system. We kind of assume from the beginning

cases are going to plead out and that affects our preparation and affects our talk with clients. It affects clients' trust in their lawyers because you end up having this plea discussion and they want their day in court. But the reality is that if they go to trial, they could get 20 years in a hypothetical case,

or they can take five years today and plead out. And they may have a legitimate defense, but the only way that they do better than the plea offer is if they go to trial and they absolutely win, and it's hard to win at trial. And so there are lots of things that lead there. They're what I call trial penalties, which are statutes that are used to enhance sentences that are waived if you plead guilty, but they're in play if you go to trial. And so you end up

getting a much higher number at trial. And so you're essentially penalized for that. And just to let listeners know, that is not supposed to be constitutional. There isn't supposed to be a penalty for going to trial. But even as of just a few years ago, I remember an appellate case testing the trial penalty theory that perhaps my husband was a part of. And it's tough. my husband was a part of. And it's tough. Right. Because the whole idea behind a plea bargain was that it was a bargain that you, by pleading guilty, you got less. But over time, the paradigm has flipped. And so instead of getting less for accepting responsibility up front and giving someone a benefit for that, that becomes the default and you're penalized if you go to trial, which penalizes those that have a legitimate defense. You've got three people that are charged with the same crime and one has a legitimate offense. Let's say they're the getaway driver and they claim, I had no idea what they were doing. I just drove

them up the road. They have a legitimate defense. If all three of, if the first two plead guilty and the third one says, I'm not guilty, I'm going to trial short of an acquittal, that third one is always going to get a longer sentence. That is exactly the case that was at question here. Uh, two kingpins and then the secretary. The kingpins pled out. The secretary got more time than the kingpins because she went to trial. Right. And then your second question was about bail reform. Yes. If wide-scale bail reform is done, it is unquestionable some people will be released on bail who wouldn't have otherwise been released and they will commit bad acts. That is the reality of the criminal justice system. The only way to prevent that

from happening is to lock everyone up for the rest of time. All of criminal justice is about how long do we hold people, under what circumstances do we incarcerate, and when do we release them. There are legitimate questions on how we determine whether someone is likely to commit a crime tomorrow or likely to be a threat to a victim or to society at large. Uh, those, those are legitimate questions and judges have a hard time figuring out which one's which, but you're always going to get some wrong. Um, and we, in my opinion, statistically, we are holding so many people today who could be safely released that as a policy on balance, it is better if we reduce that number to more,

but it is a reality that some of those people, if you release 50 people that wouldn't otherwise be released, at least one or two of those 50 are going to do something bad. And that's the reality of criminal justice policy. Maybe the right thing to do is keep all 50 in jail. But I think we've done that for 30 years. And I think it's had a negative impact on many parts of society. Just a hard day to have this conversation, watching some of those videos last night in Waukesha. Just a hard day to have this conversation, watching some of those videos last night in Waukesha. Right. Yeah, it's awful.

It's awful. I think that one thing that is about the bail issue is, I think that we got in the habit of high bail. We got in a habit of, when in doubt, keeping people, which is not to say that we should let everyone free before trial but when you have a situation where you know up of 80 percent of people who are currently in jail are are pre-trial um jail is you know as opposed to prison uh what's important to realize about that that means that means that somebody is right now in prison, had near total, not total deprivation of liberty, without having the charges.

The charges against them have not been proven beyond a reasonable doubt. And so there is a very definite process as punishment problem here. But at the same time, we absolutely know there's a public safety problem. And so it's not just pure malice that the reason why people are held pretrial is not just pure malice.

There's a legitimate public safety issue. I think the issue is how far have we pushed and has it accomplished what we hoped it would accomplish? I think those are legitimate, really hard questions. Yep. Let me give one more example real quick. And this isn't for bail reform, but just on, this is a case that I recently became familiar with because our

Court of Appeals here in Kentucky did it. And this is an example of how far the system has gone, just what you're saying, David. The court of appeals recently affirmed a conviction for a man. He's a low-functioning client that we had. He was competent. We had him evaluated and he was found competent. But his crime was he bought two pairs of tennis shoes through Facebook Marketplace, which private sales arranged it. He showed up, met two people in person, and bought two pairs of shoes on Facebook Marketplace. Total value, $190. He paid for those with money that he had produced. He printed fake money. And his green, when you look at it, it's obviously fake

because he changed some of the wording. This was not an attempt to accurately copy money. This was a fake. And the person has some mental illness. And so this is all playing into whether he thought this was funny or trying to get the tennis shoes, whatever. That's the crime. Two for $190. Had he just stolen the two pairs of tennis shoes, he would have been charged with misdemeanor theft, probably gotten a little probated time,

maybe some community service. He was indicted in Kentucky on 11 counts of possession of forged instrument currency, which is in Kentucky, a Class C felony carries up to 10 years in prison. It was 11 counts because there were 11 bills. He had made $20 bills and there were 11. And so fast forward to the end. He's indicted on a felony, doesn't want to plead to a felony. He has a prior record and is indicted under our prior felony. That man is now serving 10 years in prison and will and is ineligible for parole because of the prior felony for two fake currency thefts that totaled one hundred nine dollars in debt. That's that's how the system has gone too far because we can't rationally look at behavior and say, what is a reasonable sentence? It's all about, let's hammer, hammer, hammer, and we've got to go back from there. This is Willie Horton, right? It's that people work far more on anecdote anecdote than data, myself included. And criminal justice reform tends to happen when crime is low

and those anecdotes are few. And right now we have violent crime increasing in most jurisdictions around the country. And you have a guy who was out in a bail reform jurisdiction who ran through a Christmas parade, killing at least five people as of the time we're recording this podcast. And so I hear you in all aspects. I would be inclined to agree with you two years ago. And it's very hard when, again, according to reporting that we have at this point, he was not intending to drive through a Christmas parade and kill people. This wasn't an act of terrorism.

He was fleeing from another crime he had committed or incident, as it's being reported, and happened to drive through a Christmas parade, hitting all of these children and grandmothers. I mean, it couldn't be more tragic. So unfortunately, it's part of this conversation, right? If you have violent crime increasing, I think it's a much easier ask to increase the resources to public defenders. I am so wildly in favor of that. I think the trial penalty is outrageous that's going on,

that we have so many cases plead out, is actually a sign of disease within our criminal justice system, not a sign of health at all. It doesn't mean we're just arresting the right people. And so the guilty, we just have 98% of the people we arrest who are guilty. There is a rot happening in the criminal justice system because your office doesn't have enough resources. The bail reform thing is a little harder for me right now. Yeah, I think I agree with you completely, Sarah. These conversations are a lot easier when that trend line is going down and when there are no recent headlines that could be part of the

discussion. But I would say this is exactly the time to have these discussions because the system is so far, I would say out of whack, out of balance, that it is not a healthy system. And so when you have violent crimes that demand retribution and demand accountability and safety for the public,

those should be the focus of the criminal justice system. And yet so many resources are spent on nonviolent, less serious offenses. And so our public defenders are spending their time on these cases. Our correctional system is spending their money on those cases. Those should be what we're looking to reform so that when someone commits a terrible crime like this man did in Wisconsin, that the system can come and focus on that because they're not being drawn in all these other ways where these societal problems

could be dealt with in a less costly way than the criminal justice system. Hey, wait, can I ask one more question, David? I'm so sorry, but we have an expert on and I have questions. Yeah, go for it, of course. There are jurisdictions, Kentucky, obviously, where you have public defenders, an office, presumably in nearly every jurisdiction, where these are people paid by the state to act as criminal defendants against the state. I think that is how most people think most systems work. But in other jurisdictions,

and I'm thinking in parts of Texas here, private attorneys actually are paid by the state to act as criminal defense attorneys for indigent defendants. I'm curious if you think one of those is working better than another, and if the private attorneys in any way, because they are used to having more resources and spending more time, that sometimes that works better than the public defender's office or if it's in fact the

opposite? It will probably shock you that I think our system is the better system. it will probably shock you that I think our system is the better system. That's why I'm asking you. I think full-time public defense is the, is the way to go. After Gideon versus Wainwright provided a federal constitutional right to counsel, a lot of places, the initial way of doing it was through appointment of private counsel, because there was no organized public defender in overwhelmingly most jurisdictions. Some did exist, but most didn't have anything. And so it went through, this constitutional right was

fulfilled through the appointment of private counsel. That raised a number of questions. In Kentucky, the underpayment, and in fact, in some cases, non-payment of criminal defense lawyers under that on a theory that they were doing it as a service to the bar or service to the community, that went to our Supreme Court, and the Supreme Court said you can't do that, that that's an unlawful taking from the lawyers. You have to pay them adequately for their time. And then the public defender system was created in response to that as a more efficient system. But your question goes to the effectiveness and which system is better for clients and for the system. Our concern is that private criminal defense lawyers who also do public defender work, in most cases, they're going to be paid a flat fee or a per case fee for the public defender work, and they can make as much as they want in their private practice work.

And so the incentive is to spend the time on the private cases because you're getting the same money regardless in the public defender cases. So that's one of the reasons we don't trust that. reasons we don't trust that. Another is not all lawyers are created equal, and the lawyers who end up taking public defender contracts in some areas are not as effective. And when you put this incentive in that they spend time on non-public defender cases, we just don't feel that the public defender clients would in fact get what they deserve, which is a full-fledged lawyer working just for them. When I'm paid by the state of Kentucky and my client, I'm going to spend the time it takes on my client's case, subject to other obligations if I have 500 cases, but I'm not bound in any way

by the amount of money my client has. That's very refreshing. I'm pretty convinced. I'm pretty convinced. And it's worth noting also that we've talked a little bit about federal prosecutors, AUSAs as they're called,

is one of the most prestigious, difficult jobs to get as a young attorney. Federal public defender is also a very difficult jobs to get as a young attorney. Federal public defender is also a very difficult job to get going to some of the best attorneys we churn out of law schools. So there's that aspect as well. And I just want to state here, I am so grateful for what you do. Our system literally collapses without smart, dedicated, career public defenders like you. Well, I echo that. And Damon can tell you firsthand that I have revised my thinking on criminal justice since we were in law school, and in large part because of Damon's influence

over the years. But I'm good. David, before you close, I almost said that at the beginning, that this is unbelievable. If there was time travel to compare this conversation with one of our first criminal justice conversations 25, 30 years ago, it's amazing. Yeah, well, you get out of law school and you start to encounter the world.

And if you try to have an open mind as you do it, you know, sometimes your mind changes about things. But I want to end with a question and I'm going to exercise host privilege here. So you are only entitled to use one word in response to this question and it's the word true or false. Okay. You as,

I can't remember if I said this earlier in the conversation, but you're also the commissioner of our Fantasy Baseball League. True or false, I'm a multiple time champion of the Boston Baseball League. That is absolutely true. Next year we will celebrate our 30th year as a Boston Baseball League. That is absolutely true.

Next year, we will celebrate our 30th year as a fantasy baseball league, and you have won two championships. Thank you. Thank you. All right. Sorry, Damon. Co-host privilege. True or false?

David has also lost, sorry, come in last, I believe, more times in your league than anyone else by a lot that that is also true he is uh we keep our career records he is the worst uh franchise in the league by by far also has the single season worst performance ever perfect thank you thank you for that that's cross-examination david that's how our legal system works. All right. All right. Okay. It's all or nothing for me.

It's just, you know, it's the Ricky Bobby philosophy. If you ain't first, you're last. And that's almost quite literally true. But thanks, Damon. We really appreciate you sharing your expertise and your time. And we thank you for doing it twice. And I'm pretty sure nothing is going to happen now between now and the publishing of this podcast

to bump you from the lineup. So thank you for your patience. Really appreciate it. And hopefully you can come join us again sometime. Thank you. Thank you, David. Thank you, sir. And we'll take a quick break to hear from our sponsor today, Aura.

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not just because he's a great friend, but I thought he had some really interesting and insightful things to say. But I'd love to get your reaction before we wind up the pod. you and I, like media people, spent a lot less time talking about individual cases like the Rittenhouse case and a lot more time talking about these larger changes that we could or should make in our criminal justice system. I am dead serious when I say there is a rot in the criminal justice system that the percentage of plea bargains are the best evidence for. I don't have a silver bullet answer to it, but I wish we spent a lot more time on Sunday shows, cable TV, talking about it and arguing over it and thinking through the ramifications because unfortunately there's a relatively few number of people percentage-wise of the population who are going to have interactions with the criminal justice system, but they are also very likely to be repeat players and it affects the community. It goes out as a ripple wave in those communities when someone is taken out.

It goes out as a ripple wave in those communities when someone is taken out. And I think we're seeing the effects of that. So I am so grateful to people like Damon who not only dedicate their careers to being part of that system, but to thinking about how to make it better. But I think that the rest of us should spend more time doing that too. Yeah, I agree with that. And it's interesting because it's fun to have Damon on, but it's also sort of taken me down a trip down memory lane that I referred to briefly at the end of our conversation, which was, and I've mentioned this before, but when I came into law school, I didn up. I wasn't somebody who'd really spent a lot of time studying the legal system. I think the best way to describe it would be a pop culture formed attitude about criminal justice. And I was very much in this kind of Republican law and order mode.

And then that mindset didn't survive encounters with the criminal justice system itself. And when I began to see, once I was a lawyer and I began to see the criminal justice system itself, and I was particularly struck by just the dramatic disparities if you had resources and you didn't have resources. And I think Damon was really, I thought that was a very, uh, a very helpful way of informing the audience, what the resources mean. The resources mean time, the resources mean ability to focus, um, with intensity and, and, uh, on a particular case, it was very, and I'm not going to say it was all of a sudden jolting to kind of my background worldview. It was initially surprising and over time, increasingly jolting. And one thing that I do think is encouraging to me as compared to where I was, say, in 1991, 30 years ago, I think a lot more people are aware

of some of these disparities, aware of some of these injustices, and are aware of the need for reform. Just the overcharging plea bargaining forcing mechanism by itself is one that merits just, to my mind, an enormous amount of attention. And I'm glad that came up in the discussion. Sorry, David.

I was going around my room trying to find the three books that best summarize me. And everyone could do this. If time stopped when you were 17 and left your parents' house and you left all those books behind, what are the three that best summarize who you are today that anyone could have figured out? I've got two for sure, and I'm really struggling on that third one. But I think I'm going to surprise people. Here's, ooh, so tough. Okay, here they are, David.

All right. Can you read them? Oh, okay, hold on. I have to, I have the Zoom picture too small. All right, hold on one second. We have the Anti-Federalist, Waiting for Godot, and Mists of Avalon. No, okay. All right. All right, I'm going to say this. I'm going to say this. This reminds me, I have an airing of the grievances because this reminds

me of so early in our podcast when you are calling me out for my nerdery. And then I ask you about your favorite novel growing up and Mists of Avalon. Okay. Mine was Lord of the Rings. I went to Renaissance Festival every fall, David. Every fall. Yeah. You're never allowed to mock my nerdery. But my three books would be

Dune, The Silmarillion, and Paralandra by C.S. Lewis. Or maybe Screwtape Letters by C.S. Lewis. And they would still be three go-to books for me right now. To understand who David French is, who he was at 17, and who he is now at 96 years old. That's incredible. That's incredible. Wow. What a journey. A youthful 52. A youthful 52. All right. Well, that was a great discussion. And we're going to be back next week. We don't know the Supreme Court could rule anytime on SBA. You know that's going to take priority. But we already we know we want to talk about this really interesting, bizarre set of legal issues unfolding out of a raid on James O'Keefe's outfit, what's it called, the Veritas Project, and a judicial order restraining the New York Times from printing attorney-client privileged information

that was just recently upheld in a New York State appellate court. All of this is very weird, y'all. There's a lot of things that are concerning and seem unusual in this circumstance. And so there are First Amendment implications. So we're going to be talking about that on Monday. And in the meantime, we're hoping to have a little bit more information to flesh out what's going on. But that's going to be something we'll talk about Monday. As we said, when SB8 comes out, But that's going to be something we'll talk about Monday. As we said, when SB8 comes out, you're going to hear from us, and we're going to break down that decision. But until then, thanks so much for listening. And one thing, I have a special request of Advisory Opinions listeners. If you've not gone and rated us, please do. And here's the goal. So we have long and accurately said this is the flagship podcast of the Dispatch Podcast Network. But I noticed that the Dispatch Podcast

has slightly more ratings than we do on Apple Podcasts. 1,900 and we have only 1,800. So I'm asking you to put us to 2,000 ratings on Apple Podcasts before the Dispatch pod. Please, five stars. Come on, flagship followers. We're counting on you.

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