Possible indictments in Georgia; Mike Pence seeks a testimonial protection normally reserved for members of Congress; Rust prepares to resume production
Great episode but I think there should’ve been more acknowledgment of the apparent fact that Baldwin’s super aggressive (and no doubt super expensive) private lawyers needed an assist from a public defender. Public defenders deserve recognition and praise!
Exactly. I'm sure there's a good reason for this that's not obvious to a layperson like me - no, seriously, that's why I listen to the show! - but: why did his fancy-pants lawyers not bother to check when the law was passed until they got a call from Variety??
As soon as I read the Fox News revelations in the defamation case last night, I knew to a certainty that a new ep of ST would show up today. It is like clockwork—a massive news story on topic of Josh and Ken’s interest always arrives just after taping.
If possible, on a future show, I’d like some exploration of the wire fraud strategy outlined in this blogpost, which is being boosted by Teri Kanefield.
In particular, politicians and nonprofits mislead in fundraising emails all the time with no consequences. Examples are Rand Paul fundraising to “fire Fauci”, which he has no power to do and the Red Cross fundraising on the Haiti earthquake & spending the money elsewhere. In addition, as you described in the episode on Elmo using SpaceX & Tesla resources at Twitter, courts defer to executive judgment in these matters.
Is this a strategy to get underlings to cooperate? Is there another path to success here that you see?
Well, seeing as we are now the unofficial crowdsource for Baldwin's legal research, it is worth noting N.M. R. Evid. 11-407 concerning subsequent remedial measures. (“When measures are taken by a defendant that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove the following: negligence; culpable conduct; a defect in a product or its design; or a need for a warning or instruction.”)
If the prosecution intends to introduce evidence of on-set changes to the safety protocols used during the filming of Rust to advance their case, the defense should vigorously argue that N.M. R. Evid. 11-407 requires that it be excluded.
The NM rule is modeled after FRE 407 with nearly identical wording. The question of whether 407 applies to criminal cases in federal courts is not settled. In United States v. Pacific Gas and Electric Company, 178 F.Supp.3d 927 (N.D.Cal. 2016), the court held 407 does apply in criminal cases, while noting other courts held the opposite.
Apparently the judge in SBF's parole hearing did not have your sympathy for his use of strong encryption... twice. I have never missed you on Twitter so much as when it was reported that the judge noted that there was evidence he had committed witness tampering and asked prosecutors, "Why am I being asked to turn him loose?"
My first thought was that you would inevitably be noting this is REALLY not something you want a federal judge saying at your parole hearing. My second thought became my Twitter reply:
“Prosecutors are not allowed to say, ‘Because he's an idiot, Your Honor. Have you seen him criming? We let him run for a month and he's incriminated himself so many ways that you already want to throw away the key and the trial hasn't even started. We're cool with it.’"
I'd love to hear what you make of Michael A. Delaney's nomination, and the family of the victim in the Owen Labrie case trying to hold him accountable for his tactics forcing the revelation of the victim's name while defending St. Paul's School. When is it fair to hold a defense attorney morally accountable for hardball tactics? Do defense attorney's carry regrets? Do they ever walk away when they feel unable to pursue a possible strategy?
It does seem relatively certain to me that perjury indictments have been recommended. I have to wonder if the judge wanted to help Willis warn certain people that they might want to rethink their stories?
I agree in general that there's probably a perjury recommendation, but I feel obliged to point out that it's possible the fuller version of the report has something more along the lines of "these two witnesses gave incompatible testimony, therefore we think one of them is probably lying and you should investigate", without including an assessment of which witness is the perjurer. Also, depending on how the jurors interpreted their mandate, they may not have felt comfortable making a more specific recommendation on a charge the DA didn't ask them about. IIRC, they were given the specific statutory text for election fraud, solicitation of and conspiracy to commit same, state RICO, and other similar charges, but I doubt the DA would have prospectively handed them Georgia's law on perjury.
Granted my own assessment was kind of muddled due to it changing a bit as I wrote that comment - I think there is probably more detail to the perjury stuff than "we think perjury occurred as a general matter and you should investigate that", but given the way the SGJ seems to have worked I don't think they'd include perjury in their formal recommended charges for any specific person.
I believe Pennsylvania had one of these special grand juries regarding allegations of sexual assault/misconduct against the Catholic church maybe 5 or 10 years ago.
Holy Cow!! The foreperson of the GA special investigative grand jury is foaming at the mouth on national television, today, revealing all sorts of details about the jury deliberations and witness testimony. Her demeanor is as though she thinks the grand jury is sport. Can she suffer any consequences for violating the supposedly secret nature of grand jury proceedings by revealing so much about the jury's work?
I guess I was thinking that it seems to indicate "more than perjury" might be charged. So I was either a little off topic, or perhaps didn't read it as carefully as I ought. Interesting times.
Not sure where to have posted this, but I am curious about the point at which Fox's activities could cross the line from merely being defamatory of Dominion to becoming accessories after the fact w/r/t 1/6. And what would they have had to know about Trump's plans to be co-conspirators?
Maybe he doesn't bother with cable TV. IIRC sports leagues and/or cable networks have been pretty resistant to letting people watch their stuff simultaneously online and broadcast, especially as those few exclusives have come to constitute more and more of a cable channel's revenue streams. I don't know if the NFL has relaxed its zealous refusal to admit the future into the United States, but even if they have using a VPN might let you avoid commercials more easily, or it could just be a holdover setup from a time when it was essential.
Also, as a generational contemporary of SBF, I'll add that we generally consider it slightly rude to watch things on television (as opposed to on a laptop, ideally with headphones) in a space that's not your own (such as one's parents' house), in much the same way that it's rude to wander around with a boombox on your shoulder. Saying as much to someone would of course be even ruder, so I don't think this particular norm has propagated back to older generations.
Hey, Ken and Josh, just wondering if you guys are going to comment on the Alex Murdaugh case at some point. There's someone who definitely is in Serious Trouble, even if he's not convicted in the murder case...
Great episode but I think there should’ve been more acknowledgment of the apparent fact that Baldwin’s super aggressive (and no doubt super expensive) private lawyers needed an assist from a public defender. Public defenders deserve recognition and praise!
I thought I was snidely implying that but maybe I wasn’t snide enough.
I did not have--- no, wait, I DO have "insufficient snideness from Ken White" on my 2023 bingo card. Well, wouldja look at that.
Me too! Right next to "George Santos steals puppies from the Amish."
Exactly. I'm sure there's a good reason for this that's not obvious to a layperson like me - no, seriously, that's why I listen to the show! - but: why did his fancy-pants lawyers not bother to check when the law was passed until they got a call from Variety??
As soon as I read the Fox News revelations in the defamation case last night, I knew to a certainty that a new ep of ST would show up today. It is like clockwork—a massive news story on topic of Josh and Ken’s interest always arrives just after taping.
If possible, on a future show, I’d like some exploration of the wire fraud strategy outlined in this blogpost, which is being boosted by Teri Kanefield.
https://www.sidebarsblog.com/p/the-sleeper-charge-related-to-january
In particular, politicians and nonprofits mislead in fundraising emails all the time with no consequences. Examples are Rand Paul fundraising to “fire Fauci”, which he has no power to do and the Red Cross fundraising on the Haiti earthquake & spending the money elsewhere. In addition, as you described in the episode on Elmo using SpaceX & Tesla resources at Twitter, courts defer to executive judgment in these matters.
Is this a strategy to get underlings to cooperate? Is there another path to success here that you see?
Well, seeing as we are now the unofficial crowdsource for Baldwin's legal research, it is worth noting N.M. R. Evid. 11-407 concerning subsequent remedial measures. (“When measures are taken by a defendant that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove the following: negligence; culpable conduct; a defect in a product or its design; or a need for a warning or instruction.”)
If the prosecution intends to introduce evidence of on-set changes to the safety protocols used during the filming of Rust to advance their case, the defense should vigorously argue that N.M. R. Evid. 11-407 requires that it be excluded.
Does that Rule apply to criminal cases? Even if so, look for the prosecution to try to introduce it for another purpose.
FWIW, I doubt they shoot that scene as originally written and blocked.
Maybe, but we don't know for sure.
The NM rule is modeled after FRE 407 with nearly identical wording. The question of whether 407 applies to criminal cases in federal courts is not settled. In United States v. Pacific Gas and Electric Company, 178 F.Supp.3d 927 (N.D.Cal. 2016), the court held 407 does apply in criminal cases, while noting other courts held the opposite.
Many people are saying it's the most special proceeding they've ever seen, and may be the Grandest Jury in History!!
It was invented by GS.
Apparently the judge in SBF's parole hearing did not have your sympathy for his use of strong encryption... twice. I have never missed you on Twitter so much as when it was reported that the judge noted that there was evidence he had committed witness tampering and asked prosecutors, "Why am I being asked to turn him loose?"
My first thought was that you would inevitably be noting this is REALLY not something you want a federal judge saying at your parole hearing. My second thought became my Twitter reply:
“Prosecutors are not allowed to say, ‘Because he's an idiot, Your Honor. Have you seen him criming? We let him run for a month and he's incriminated himself so many ways that you already want to throw away the key and the trial hasn't even started. We're cool with it.’"
I'd love to hear what you make of Michael A. Delaney's nomination, and the family of the victim in the Owen Labrie case trying to hold him accountable for his tactics forcing the revelation of the victim's name while defending St. Paul's School. When is it fair to hold a defense attorney morally accountable for hardball tactics? Do defense attorney's carry regrets? Do they ever walk away when they feel unable to pursue a possible strategy?
Thanks for alerting me to that. I may write about it.
And, as a preview, based on reading the key legal document, the criticism looks like bullshit.
It does seem relatively certain to me that perjury indictments have been recommended. I have to wonder if the judge wanted to help Willis warn certain people that they might want to rethink their stories?
I agree in general that there's probably a perjury recommendation, but I feel obliged to point out that it's possible the fuller version of the report has something more along the lines of "these two witnesses gave incompatible testimony, therefore we think one of them is probably lying and you should investigate", without including an assessment of which witness is the perjurer. Also, depending on how the jurors interpreted their mandate, they may not have felt comfortable making a more specific recommendation on a charge the DA didn't ask them about. IIRC, they were given the specific statutory text for election fraud, solicitation of and conspiracy to commit same, state RICO, and other similar charges, but I doubt the DA would have prospectively handed them Georgia's law on perjury.
Check NY Times. That doesn't sound like the route we will see.
If this (https://www.nytimes.com/2023/02/21/us/trump-georgia-grand-jury-indictments.html) is the article you're referencing, I'm not seeing a clear connection to what I was saying about perjury?
Granted my own assessment was kind of muddled due to it changing a bit as I wrote that comment - I think there is probably more detail to the perjury stuff than "we think perjury occurred as a general matter and you should investigate that", but given the way the SGJ seems to have worked I don't think they'd include perjury in their formal recommended charges for any specific person.
I believe Pennsylvania had one of these special grand juries regarding allegations of sexual assault/misconduct against the Catholic church maybe 5 or 10 years ago.
They released some huge 1000 page report on it.
I cannot envision any court taking seriously the idea that Mike Pence belonged to two coequal branches of the US government simultaneously.
Holy Cow!! The foreperson of the GA special investigative grand jury is foaming at the mouth on national television, today, revealing all sorts of details about the jury deliberations and witness testimony. Her demeanor is as though she thinks the grand jury is sport. Can she suffer any consequences for violating the supposedly secret nature of grand jury proceedings by revealing so much about the jury's work?
I guess I was thinking that it seems to indicate "more than perjury" might be charged. So I was either a little off topic, or perhaps didn't read it as carefully as I ought. Interesting times.
Hey, good call by the NM practitioner - I see the enhancement was dropped from the charges. Reporting yesterday.
Not sure where to have posted this, but I am curious about the point at which Fox's activities could cross the line from merely being defamatory of Dominion to becoming accessories after the fact w/r/t 1/6. And what would they have had to know about Trump's plans to be co-conspirators?
Here’s what I don’t understand: why would SBF need a VPN to watch the Super Bowl (or any NFL playoff game)?
Those games are broadcast over the air in every market in United States.
Maybe it’s a case of a tech bro doing things in the most tech, bro fashion possible, or maybe his explanation is fishy.
Maybe he doesn't bother with cable TV. IIRC sports leagues and/or cable networks have been pretty resistant to letting people watch their stuff simultaneously online and broadcast, especially as those few exclusives have come to constitute more and more of a cable channel's revenue streams. I don't know if the NFL has relaxed its zealous refusal to admit the future into the United States, but even if they have using a VPN might let you avoid commercials more easily, or it could just be a holdover setup from a time when it was essential.
Also, as a generational contemporary of SBF, I'll add that we generally consider it slightly rude to watch things on television (as opposed to on a laptop, ideally with headphones) in a space that's not your own (such as one's parents' house), in much the same way that it's rude to wander around with a boombox on your shoulder. Saying as much to someone would of course be even ruder, so I don't think this particular norm has propagated back to older generations.
“Watching TV is rude” is deranged. Sorry.
I wondered about this, too. Why not just turn on the TV like a normal person?
Hey, Ken and Josh, just wondering if you guys are going to comment on the Alex Murdaugh case at some point. There's someone who definitely is in Serious Trouble, even if he's not convicted in the murder case...