UNBIASED - Week in Review: January 23-29, 2023

Episode Date: January 30, 2023

1. Tyre Nichols (1:27)2. Meta Announces Reinstatement of Trump on Instagram and Facebook (12:18)3. Consumer Sues Maker of Fireball Whiskey for Fraud and Misrepresentation (16:46)4. Oklahoma Executes Scott Eizember (21:58)All sources can be found on www.jordanismylawyer.com. Follow Jordan on Instagram and TikTok @jordanismylawyer.com Learn more about your ad choices. Visit podcastchoices.com/adchoices

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Please gamble responsibly. Gambling problem? For free assistance, call the Connex Ontario helpline at 1-866-531-2600. BetMGM operates pursuant to an operating agreement with iGaming Ontario. You are listening to the Jordan is My Lawyer. This is your host Jordan, and I give

you the legal analysis you've been waiting for. Here's the deal. I don't care about your political views, but I do ask that you listen to the facts, have an open mind and think for yourselves. Deal? Oh, and one last thing. I'm not actually your lawyer. Welcome back to the Jordan is my lawyer podcast, your favorite source of unbiased news and legal analysis. If my voice sounds a little bit different today, it's because I'm recording this pretty early on Sunday morning. I had my bridal shower yesterday, so it's safe to say I am tired, but nonetheless, the news doesn't stop. So we're going to get through it today. We're talking about the arrest of Tyree Nichols, which has obviously taken the media by storm. Everyone's talking about it. We're talking about meta letting Trump back on their platforms.

We're talking about a lawsuit against Fireball, the maker of cinnamon whiskey. And then we will finish the episode talking about an execution in Oklahoma this month. That was the execution of Scott Eisenberg. So without further ado, let's get into it. the arrest of Tyree Nichols is what a lot of people are talking about right now. And if you're anything like me, you have questions, right? Because we read these articles and we hear these stories and it sounds awful, but naturally your thought is, okay, what events led to this, right? So let's talk about it. Five officers have been charged with second-degree murder, as well as other charges that we will

get into in a little bit, following the fatal beating of a man named Tyree Nichols in Memphis at a traffic stop. So the video cam footage was released on Friday. It can be found on Vimeo, but it's also linked on my website. So if you just need a quick place to find it, go to my website, scroll down to the bottom of this episode's webpage description, and that link will be in the sources. Just a warning, there is no audio on any of the clips for the first minute. So I sat there for a while trying to figure out why I couldn't hear anything.

You just got to wait a minute on each of the clips. There's four total. Each of the four videos shows a different thing. So video one shows either the third or fourth officer getting to the scene as Tyree is being pulled out of his car. So he's pulled over at an intersection allegedly for reckless driving. And the video starts with this body cam footage that shows Tyree being pulled out of the car. All of the officers are yelling at him to get on the ground and Tyree wasn't fully cooperating, but he also wasn't completely resisting. So they're telling him to get on the ground and he gets on his knees and then they tell him to get on the ground again.

And he says, I am. And they like saying I am on the ground and they yell tell him to get on the ground again. And he says, I am. And they like saying I am on the ground and they yell at him to get on his stomach and he never fully gets on his stomach. Instead he lays on his side. So the officers are yelling at him more. They're telling him to put his hands behind his back. And instead of putting his hands behind his back, he gets up and he runs away. So this starts a very quick chase. It didn't last long. I think the officers got like four blocks maybe, uh, in distance until they lost, they lost him. So Tyree gets away. He leaves two of the officers winded. And then you see these two officers walking back to their cars and you can hear one of them say, why didn't the prongs hit the bastard referring to the taser? And one of the,

the other officer, the second officer is complaining that he can't see. So he has the other officer pouring water, water on his eyes, implying that he either got hit in the eye or pepper sprayed while Tyree was resisting during that initial initial altercation. So towards the end of that video, you hear one of the officers say they found him talking about, you know, the other officers that had gone off and chased him. And what it seems like is that he was running home because where he was found was within a hundred yards of his mom's house. And that explains why he was calling out for his mom in the second altercation, which we'll get into. Also, one thing I noted is

that one of the officers in video one was white. You can tell when he like reaches his arm out, it was a white man. And all of the officers that were charged in this case were black. So I'm assuming that this one officer or these two officers that were in video one were not involved in the ultimate beating of Tyree. So then video three shows, I'm going to, I'll do video two after I'm just going to skip over that for now. Video three shows body cam footage from the second location where they eventually catch Tyree on foot. And again, he's not cooperating completely. Officers are giving him commands. You can hear Tyree saying, all right, all right. But he's not really doing what the officers are saying.

So they're telling him to put his hands behind his back and he's not. He calls out for his mom at one point. And then it seems like he tries to get up again. And he's again sprayed with pepper spray. And in the background, you can hear officers asking for his hands repeatedly. So he's still not really giving them his hands or like putting them behind his back. One of the officers then hits him with his baton a few times. And the officer that hits him with the baton eventually walks back to his, his patrol car. So that's when that video ends. Video four is the body cam footage of Tyree actually being taken down. So they, they catch up to him after he runs away and they're chasing him down the street and

they take him down. There's only about 20 seconds of footage and audio in this video. It seems like the body cam almost falls to the ground, but you can still hear what's happening in the distance. So it sounds like he's getting tased and, you know, he's yelling, stop. He's telling the officers to stop. And again, the officers are asking for his hands, asking for his hands. And that's pretty much the gist of video four. And then video two is footage from a, uh, a pole camera nearby. So there's a pole at an intersection that has a camera on it, and that's where he's caught on foot. So this video is from above, from obviously the pole.

And what you can tell, there's no audio at all. So it's kind of hard to see what's happening and align it with what's being said. But from about the 2 minute and 18 second mark until the 3 minute and 40 mark, Tyree is getting beat. It looks like kicks to the face, punches to the head, back, etc. At one point, it looks like Tyree, or he does, like Tyree gets up again and he's ultimately brought back down. It's unclear if Tyree got himself up, like he was trying to get up and resist, or if the cops brought him up. You can't really tell. And then finally,

at about the five minute mark, the officers back off of him, like completely removed themselves from him. So it's just him lying on the ground. It seems like that's the point at which they got him handcuffed, which is why they were able to kind of take their hands off of him. And then at around the six minute mark, they get Tyree propped up against one of the cop cars. They're talking to him on and off until about the 23 minute mark. So this lasts about 18 minutes. And then medical help finally gets there at about the 23 minute mark of video two. And then at the 30 minute mark, he is put onto a stretcher, brought into an ambulance. And that's when the video ends.

Now, articles that I read said that the reason that medical help was called was because he was complaining of shortness of breath. And when he was taken to the hospital, he was listed in critical condition. He ultimately ended up dying on January 10th, which was three days after this altercation. So a little bit about Tyree. Tyree was the father of a four-year-old son. His family described him as an avid skateboarder and nature photographer from Sacramento. He moved to Memphis sometime before the pandemic, and then he ended up starting a job with FedEx about nine months ago. So as I stated earlier, the five officers facing charges are facing second degree murder charges. They're also facing charges of aggravated assault, aggravated kidnapping, official misconduct, and official oppression. Now these indictments were handed down by a grand jury. So what does this mean? This doesn't mean that the officers have been found guilty.

So there's a big difference between a grand jury and a petite jury. And that's important to distinguish here because a petite jury is typically what we hear about. That's the jury that listens to all the evidence during a trial, renders either a guilty or not guilty verdict, right? A grand jury, on the other hand, listens to evidence presented by an attorney for the government, doesn't necessarily hear evidence from both sides, and determines from that evidence, from the government's evidence, if sufficient probable cause exists for bringing formal charges. So in this case, the grand jury said, yes, there is sufficient probable cause based on what we've heard, which is why these officers have been charged, but they

haven't been found guilty or not guilty. So the jury, the petite jury will ultimately decide if these officers are guilty or not. And that'll be made up of completely different people. So if you served on the grand jury in this case, you can't then serve on the petite jury in determining the guilt. Now under Tennessee law, second degree murder is defined as a knowing killing of another. So in other words, if the defendant in this case, the police officer or officers knowingly engaged in multiple incidents of assault or infliction of bodily injury against a victim, the jury may infer that that defendant was aware that the cumulative effect of the conduct was reasonably certain to result in the death of the victim. And that is regardless of whether any single incident would have resulted in death. So knowing, un a knowing killing is like that key word there.

The officers had to have known that what they were doing was reasonably certain to result in the death of the victim in a cumulative sense. So if found guilty, it's a class a felony. It's punishable by 15 to 60 years in prison. If you're interested in hearing about the aggravated assault, the aggravated kidnapping, the official misconduct, and the official oppression, you can hear about those or read about those, I should say, on my website. I linked all of the links to the Tennessee law so you can get a description of what those crimes are considered in Tennessee specifically, because obviously that's the law we're working with. So you can get a description of what those crimes are considered in Tennessee specifically, because obviously that's the law we're working with. So if you're interested in

reading about those, definitely feel free to do that. That is on my website. Again, jordanismylawyer.com. That's what's going on with Tyree Nichols. The one thing I want to say, and I don't want this to come off as me taking sides one way or the other because that's not what I'm here to do. You guys know that by now. What I will say, though, I read tons of articles about this in preparation for my podcast episode. As always, I always tell you guys, you know, do your own research. Look into the source as close of a source as you can get.

That's where you need to look. And in this case, that source is going to be the videos. That's going to tell you what you need to know, because ultimately that's what the jury is going to be looking at. In this case, the jury is going to be looking at the video footage. So that's the place you need to go. These articles, depending on, you know, whether you're reading Fox news or you're reading CNN or whatever it might be, the facts are always going to be tailored to their narrative. So just do yourself a favor, watch the videos. They're on my website, very easily accessible. If you want to get an idea as to what happened here. So let's move into a little bit more lighthearted news, which is that meta is allowing former president Trump

back on Instagram and Facebook. Do you guys want to know what's funny? Whenever I say Trump, I always hesitate of whether I can say Trump or I have to say former president Trump, because obviously Trump is easier, but I feel like in the past when I've said it on TikTok or like Instagram or wherever it is, Trump supporters almost think I feel like in the past when I've said it on TikTok or like Instagram or wherever it is, Trump supporters almost think I'm like being disrespectful by not saying former President Trump. It's very odd. So if you ever catch me just saying Trump, just know no disrespect intended. That's just an easier way to do this. So as of Wednesday, former President Trump will be allowed to return to Facebook and Instagram. Trump was banned after

the January 6th incident at the Capitol, as you guys probably know, and he will now be allowed back on. So let's talk about this a little bit. Nick Clegg, who is the president of global affairs at Meta, said that Trump's account will be reinstated in the coming weeks with new guardrails in place to deter repeat offenses. In a blog post posted to Meta's website on January 25th, Nick Clegg wrote, quote, social media is rooted in the belief that open debate and the free flow of ideas are important values, especially at a time when they are under threat in many places in the world. As a general rule, we don't want to get in the way of open, public, and democratic debate on Meta's platforms, especially in the context of elections and democratic societies like the United States.

The public should be able to hear what their politicians are saying, the good, the bad, and the ugly, so they can make informed decisions at the ballot box. But that does not mean there are no limits to what people can say on our platform. When there is a clear risk of real world harm, a deliberately high bar for Meta to intervene in public discourse, we act. So it goes on to say, you know, it talks about how he was suspended, how Meta imposed a time-bound suspension of two years from the date of suspension. So obviously at this point, two years has elapsed, which is pretty crazy. Time just really flies. But the statement goes on to say, the suspension was an extraordinary decision taken in extraordinary circumstances. The normal state of affairs is that the public should be able to hear from a former president of the United States and a declared candidate for that office again on our platforms. Now that the time period of the suspension has elapsed, the question is not

whether we choose to reinstate Mr. Trump's accounts, but whether there remains such extraordinary circumstances that extending the suspension beyond the original two-year period is justified, end quote. And it discusses the factors that Meta assessed in reaching their decision to ultimately reinstate his accounts. So if you're interested in reading this for yourself, again, it's linked on my website. I don't want to bore you with all of the factors. What's important to know here is that, you know, as he said, it wasn't a choice as to, I mean, it was a choice as to whether to reinstate Trump's accounts, but in making that decision, basically what they're saying they had to decide was, are there extraordinary

circumstances still remaining today that would justify extending his suspension going forward. So, uh, originally they, you know, put in place this two year period that he was suspended for. Once that two year period is up, they had to decide, are there still extraordinary circumstances that would warrant us keeping his accounts suspended, which they obviously ultimately decided no. And that's why he will be allowed back on. So as of this morning, January 29th, he has not posted anything on Instagram or Facebook. His account is there, but there hasn't been anything posted. His last post was January 5th, 2021. So we'll see if he takes back. I mean, obviously he has his new social media platform, Truth Social. So I don't know, maybe he doesn't want to come back. Maybe he will

eventually. Only time will tell. A consumer has filed a lawsuit against the maker of Fireball whiskey for fraud and misrepresentation. According to the complaint, the plaintiff started noticing that many bottles of Fireball were being sold at supermarkets and gas stations for as cheap as 99 cents. And when this person, this woman, saw these bottles at gas stations and supermarkets, like typically, obviously, if liquor is being sold, it's at a liquor store or it's somewhere with a liquor license. She was confused. And she looked closer at these bottles after she had purchased them and noticed that it wasn't actually whiskey. So the bottle looked identical to a fireball bottle. If you've ever seen fire, a fireball whiskey bottle, it says fireball in big font. There's like their, uh, emblem or logo or whatever. And then it says

cinnamon under it and then whiskey under that. Now, so the bottles looked exactly the same. The only difference was that the little whiskey text under cinnamon wasn't there. So you can actually see if you go to my website and you pull up the complaint, it has pictures of what a fireball bottle looks like compared to this cinnamon flavored mal malt drink bottle. And it looks basically exactly the same. So this, they call it fireball cinnamon, and it's what they were selling at these supermarkets and gas stations for 99 cents. And this fireball cinnamon is a malt beverage flavored to taste like cinnamon whiskey. So it's based on fermentation, which creates a neutral base,

and then flavors and colors are added to it. So it's literally cinnamon whiskey flavor added to this malt beverage. It's not actually whiskey, it's whiskey flavor. So the packaging says in fine print, quote, malt beverage with natural whiskey and other flavors and caramel color, end quote. So one would think without looking into it too much that it contains whiskey because it says natural whiskey. But, and this is what the complaint argues is that what the label actually means to say is that the product contains like, this is what it should say, quote, natural whiskey flavors and other flavors. But by not including the word flavors after natural whiskey, consumers look at that and they

think it's natural whiskey. Now, the other side of that argument is that the label does say natural whiskey and other flavors, which necessarily implies that the natural whiskey ingredient is a flavor. Otherwise you wouldn't have other flavors, right? But as if you're just like at a supermarket or at a gas station, you pick up this bottle for 99 cents. It looks just like the fireball whiskey you're used to buying. You're not going to read the fine print. And if you do, you're not going to put two and two together that other flavors like grammatically means that natural whiskey is a flavor despite it not saying flavor you know what i mean so i'm curious if you guys would pick up on that and you may have to look at the bottle to get a better idea but i'm just curious like i don't as at me i don't think

i would pick up on that so the complaint goes goes on to say that this particular plaintiff purchased these Fireball cinnamon bottles at various stores, expected it to contain a small amount of whiskey. And what it argues is that the consumer paid more for the product than she would have had she known that the representations were false and misleading, or she wouldn't have purchased it at all. The lawsuit says that given the lack of alcohol, the price of 99 cents for a 50 milliliter bottle is overpriced. So the counts listed in the complaint, there is one, two, three, four, five, six total counts. The first is a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act.

Second is violation of state consumer fraud acts. Third is a breach of express warranty. Fourth is negligent misrepresentation. Fifth is fraud. And sixth is unjust enrichment. The plaintiff in this case is seeking over $5 million in aggregate damages, and that includes statutory and punitive damages. So basically the difference there is statutory damages are damages allowed by law, by statute.

So, you know, whenever you violate any law or any statute there, there's monetary, not always, but sometimes there is monetary damages involved. Um, so in this case, they're saying any statutory damages plus punitive damages, which punitive is meant to punish. So however much the judge or jury thinks is warranted in punishing the maker of Fireball whiskey for deceptively selling this Fireball cinnamon drink. So I do encourage you guys to look at that complaint. It's really interesting to see the pictures side by side of the different bottles. And just, I don't know, like I'm curious if you guys would consider this deceptive advertising or false advertising. It's a pretty interesting story.

So this takes us to our last story, which is the execution of Scott Eisenberg. This happened on January 12th in Oklahoma. He was executed via the lethal injection at 1015 AM. The lethal injection protocol in Oklahoma is a three drug cocktail. So it's midazolam first, which is a sedative. The second drug is virchronium bromide, which is a paralytic. And the third drug is a lethal dose of potassium chloride, which stops the heart. This protocol was recently challenged and upheld by a district court judge for the Western district of Oklahoma. So the challenge was specifically in regards to that first drug, midazolam. And they, what, what the argument was is that this drug violated the eighth

amendment in that it was a cruel and unusual form of punishment. Because what they were saying was that the midazolam doesn't sedate the inmate enough to leave the inmate insensate, which means like unable to feel pain. And that the third drug, which is lethal dose of potassium chloride, is a very painful drug. And so they were saying that the inmates weren't being sedated enough. This drug was not strong enough to leave the inmates unable to feel pain, which was causing them severe pain once that third drug was administered. So in this challenge, medical experts testified in support of the inmates, including Dr. Craig Stevens, who's a professor of pharmacology at Oklahoma State University.

And he testified to the fact that midazolam lacks the pharmacological properties necessary to render an inmate unconscious and unable to feel pain before they're paralyzed by the second drug, which results in inmates being subjected to what he calls the burning fire sensation of the third drug, the lethal dose of potassium chloride. Dr. Mark Edgar, who is a pathologist and autopsy director at the Mayo Clinic in Florida, also testified to the fact that 27 of the 30 prisoner autopsies he reviewed experienced severe pulmonary edema or fluid filling up the lungs. And he described that that sensation, when these prisoners experience that, what they're feeling is doom, panic, drowning, and asphyxiation. Those are the feelings, those are the sensations

that they feel when these severe pulmonary edemas happen. And he attributed the edemas to midazolam specifically. Two of the autopsies he reviewed were the autopsies of John Grant and Bigler Stouffer, who were two inmates executed that both experienced pulmonary edemas. And he testified that the average weight of an adult male's lungs is a thousand grams. Stouffer's autopsy report noted that post-execution, his lungs weighed 1500 grams, whereas Grant's autopsy placed the weight of his lungs post-execution at just under 1400 grams. So the argument there is that the lungs are only supposed to weigh about a thousand grams, but because they're filling with fluid unnecessarily, um, you know, they weigh significantly more.

Dr. Edgar also testified to froth being present in the lungs of some of the inmates, which according to him would only occur if the prisoner is still alive and breathing when the edema occurred. So there, the argument is, you know, the prisoner is still alive and breathing. He can still feel these things and therefore it is cruel and unusual. The state of Oklahoma, of course, presented their own experts, including Dr. Irvin Yen, who's an anesthesiologist. And he called Oklahoma's protocol, quote, adequate to carry out an execution in as humane a way as possible, end quote. Oklahoma Department of Correction's chief of

operations, Justin Ferris, also testified, and he said that he had attended each of the state's four recent executions and that the prisoners appeared to him to be unconscious immediately after the midazolam was administered, and therefore it works and there's no issue. Obviously, this is not an exhaustive list of witnesses for either party, but you get the gist of where the arguments lie and what the challenge is. So the hearing lasted a week. It started at the end of February and went into the beginning of March of 2022. And the judge made his ruling on June 6th, in which he decided that the lethal injection protocol is constitutional, it's fine, it can remain. And what he said in his holding is,

quote, the prerequisites of a successful lethal injection challenge under the Eighth Amendment have been made clear by the Supreme Court in Bays, Glossop, and Bucklew. The plaintiff inmates have fallen well short of clearing the bar set by the Supreme Court, end quote. Bays, Glossop, and Bucklew. The plaintiff inmates have fallen well short of clearing the bar set by the Supreme Court, end quote. Bays, Glossop, and Bucklew are prior cases in front of the Supreme Court regarding lethal injection challenges, you know, under the Eighth Amendment. And therefore, in all of those cases, the Supreme Court kind of laid out what an inmate needs to prove in order to win their case. So specifically, the Supreme Court in Bucklew stated that, quote, the Eighth Amendment does not guarantee a prisoner a painless death, something that, of course, isn't guaranteed

to many people, including most victims of capital crimes. And the court in Bucklew ultimately held that an inmate who challenges the state's method of execution must show that the state's method presents a substantial risk of severe pain, meaning important because that is the standard that all of the courts are going to hold these execution challenges to because that standard was set by the Supreme Court. So the inmate has to prove that the method of execution is either sure to or very likely to cause serious illness and needless suffering. And in this case, the judge in Oklahoma decided that they did not rise to that level of proof and therefore the current lethal injection protocol

can stand. So that is the challenge. Now, what did Eisenberg do? How did he end up on death row? He killed an elderly couple in 2003 when he broke into their home to spy on essentially his ex-girlfriend who lived across the street. So he waited for this couple to leave their house to break in and he hid in the house, waited, like basically he was hiding in the house to look out the window to spy on his ex-girlfriend across the street. So when he got in, he was hiding and the couple came back home unexpectedly. And when they came home, he killed them. He shot the wife and he basically beat the husband to death with the gun. And then he broke into his ex-girlfriend's home across the street, shot his ex-girlfriend's son in the back and attacked his ex-girlfriend's mom before he left the area

in a stolen car. So he was on the run for months. He decided while he was on the run that he was going to kidnap a doctor and his wife at gunpoint. And he drove them from Arkansas, where he had managed to flee to, to Texas. And eventually the doctor had, so he kidnapped the doctor and his wife in the doctor's car, it seems like, because the doctor pulled out a gun that was stashed in the car and shot Eisenberg four times. So Eisenberg was ultimately taken into custody because of his wounds, thankfully. He was convicted in December of 2005 on two counts of kidnapping and one count each of carjacking and using a firearm in a crime of violence, and he was sentenced to 25 years in prison. And that's in regards to the doctor and the doctor's

wife kidnapping situation. But then when he was tried in the original case where he killed the couple, he was convicted of first-degree murder, and he was tried in the original case where he killed the couple he was convicted of first degree murder and he was sentenced to death for killing the husband and he was convicted of second degree murder and sentenced to 150 years for killing the wife the reason that his conviction and sentence were different for the wife was because eisenberg's attorneys argued that the wife was shot and killed when Eisenberg and the husband struggled over the gun. Therefore, Eisenberg lacked the requisite intent to kill the wife. So he had intent to kill the husband, and that is why he was ultimately sentenced to death and convicted of first-degree murder, but they couldn't necessarily prove that he had the intent to kill

the wife. Nonetheless, he was sentenced to death, so it didn't necessarily prove that he had the intent to kill the wife. Nonetheless, he was sentenced to death, so it didn't matter that he got 150 years for killing the wife. He was sentenced to death regardless. He received his last meal the night before his execution at 5.10 p.m., which was a medium rare rib eye steak and two sides of fries. The lethal injection started the next morning at 10 0 5 AM. And he was pronounced dead at 10 15 AM. His last words were, I am at peace. My conscience is clear completely. I love my children. So that is Scott Eisenberg. I do still have another January execution to cover that will happen next episode but that concludes this episode I hope you enjoyed it please don't forget to check out the sources on my website

and if you haven't already please leave my podcast a review on whatever platform you listen I am very proud to maintain a five-star rating and I would like to keep it that way so I really appreciate you guys I will talk to you on Monday