OA253: Religious Freedom and Domineque Ray


We find that the fans into guilty. Is open the chicken salad on brielle's bond to be guilty of been to lure show. What's searching, the constitution was in breach. There is no one section just the vibe of the thing. Objection your honor what leading the witness. Brequet bullets lawyers. Welcome to opening arguments. The podcast that pairs an inquisitive interviewer with the real life. Lawyer this podcast is sponsored by the law offices of p Andrew Torres LLC for entertainment purposes, is not intended as legal advice does not form an attorney client relationship. Don't take legal advice from podcast. Hello and welcome to opening arguments. This is episode two hundred fifty three and it's Valentine's Day addition. Andrew Lee be my Valentine. I was hoping you'd ask that I cannot imagine anyone with whom I would more want to spend today, then my then my life partner my opening arguments partner Thomas doing we should if we have new listeners, we should be like, we're we're we're both buried we both have Valentine's Day Mary too. I don't have any Valentine's plans other than being sick and my real Valentine, Andrew Torres. That's right, everybody. I said it I think Lydia listened social here. This and laugh. Yeah. So sorry for the voice. This is this is particularly bad one. You know, the life of of dad is getting sick every five seconds. But we can't be stopped. We've got too much stuff to talk about probably probably an anger inducing episode. I suppose we can do content warning because the world sucks. This is this is this particular story made me pretty upset, and I'm imagining my make you upset too. So that's always fun. But we gotta hear about it. We gotta we gotta learn what's going on. And we got Andrew break it down for us. And also, but I we get a Andrew is wrong segment that I'm looking forward to. And then we take a little trip up yellow mountain. It seems to me do you feel like Android sometimes we're caught in a groundhog day of yellow mountains? Like, I I see. Manafort lied, and then like didn't we do this? I've done right. We go to gablers. It's groundhog day. Don't don't fart lies. And then nothing happens. How do we work? Manafort Manafort, lying is not exactly the most original headline that I can put on our on our white. But no, this is an important judicial determination that Manafort, we'll get there. Just picture. He say Manafort lying. I say it's still only once a year, isn't it? It's gonna be cold grey. And it's gonna last the rest. Okay. So that's our episode. And also very exciting show. Nouncement? I, you know, Andrew win on Muller. She wrote last week or was the week before. Now, it is it is last week. So it's it it's actually this current episode. It released on on Sunday, and you can still hear me on on Muller. She break. It's a fantastic episode. If I do say, so myself, it absolutely is. And we are going to have g of Muller. She wrote on next episode. Can't wait really excited about that. Is is a match made in heaven. It's it's it's chocolate peanut butter or something. I don't know. It's rhesus paid better cups. I'm sick a break. All right. As I said, I said this on social media. So I'll repeat it here. The muller. She wrote show is basically like a one to two hour trip up iota mountain with swearing. So, you know, it's why didn't we think of that? I know seriously. We got deep dives about you know, race Judah Cada. God knows what. So that's slightly different show. But but good one, thanks. No, I saying saying, you know, it's a different niche. You know, we got we serve the hardcore law students and the people who want to hear iota amount. Yeah. That's that's where we're going with it. Good point. All right. But no, I'm excited that that's going to be a lot of offering if you know the difference between right and wrong. I discovered at a very early age if I talk long enough, I could make anything right or wrong. So either I'm God or truth is relative. And in either case. Julia, oh, interesting. It's just the average person was a much harder time say boo to moral relative is let's get to Andrew was wrong. So NICKY, Fatchett am not sure you pronounce that. But might be Fatchett probably says canny, Andrew stop using the phrase off the the reservation, it is quite problematic and offensive to people of native descent in the US, Nikki, I gotta tell you. I've tried. I'm going to kind of throw you a under the bus, Andrew. There are few edits where I said, oh, Andrew you said off the reservation don't say that. And then he went back. And then I think I've missed it a couple times. And it's it's one of those things, you know, Andrew you can say what you want to say about it. But it's just one of those things that I'm I'm sure you, you know, just grew up learning as not thing. And then you have to kind of try to do your best to realize that it is it really would be like if you said to a black personnel. He's gone off the plantation. It'd be like, that's horrible. You would never say that. So like when you think about what it would mean, it is pretty disturbing. So no. And as soon as that came through I I wanted us to to talk about it to to put it in an Andrew was wrong segment. And and and to say, I totally get it. Right. And yeah, it certainly is. And it's something that I have to unlearn. Out of my vocabulary. I will tell you lawyers who are the next half generation up for me. Right. Who are in their fifties? Still sometimes will use the phrase Chinese wall. Yeah. That was what they used to call, you know, just sort of ethical wall, right? Like walling off from conflicts. And I remember being a young associate at at Covington and Burling and hearing partner say to set up a Chinese wall. And and like looking over at other young associates who didn't grow up with this in horror being like, you know, please tell me he's not gonna like pull his is back or you know. Right. That'd be seriously. Right. I mean, it's it's so obvious to me that that's racist. And it is obvious win. You pointed out how how much that phrase is is similarly racist. But you know, it's it's a question of making sure that you own up to it. And that the consciousness of that supersedes sort of the ease and and lack of thinking about it. Yeah. And so so yeah. I greet. I mean, I just wanna emphasize this, right? I want to be called out if I'm saying something that makes me sound like an old out of touch white, right? Right. Same as possible. I've used it before just because you don't you know, sometimes it, and maybe we'll just both say off the rails. We can say off the rails. That's it's it's it's easy as it starts with ours. The same we were practically there, and then if we don't than it's Brian's fault because Brian officially it's now on you, make sure we don't say anything stupid or but Nikki thank you so much, and and we will we will do our best. And you know, I wanna turn this into a positive segment here because I actually just finished a book called they're there. And it's by Tommy orange, and it's about all of these different. It's about a number of different native American characters who grew up in live in Oakland. So it's weird because so close to me, and, but it's it's it's an incredible book. You know, it's one of those books that the New York Times with buzzing about. And for good reason. Because it's it's really fascinating. And it really gives you perspective into into how native Americans have are living. Now, you know, a lot of a lot of what we get in in in our predominantly white view of culture is you know, the old old western kind of whatever native American shooting Cowboys and Indians crap. And this gives you a picture of what it's like now. And and how the past has bled into the present. And it's so once it's a really good book. So it's called there there. I would highly recommend it. I'll go I'll go check it out. All right with that said, let's move onto a really disturbing story that I'm hate. Yeah. Yeah. Me too. So tell us about this scout is decision that you can only if you're going to be killed by our country. You can only be Christian is that a? It it. So so this is the case of done versus Rey. We are one week out. So Dominic gray was executed by the state of Alabama a week ago today at ten twelve pm. This is a person who has been executed you, and I are both anti capital punishment. This is not really, you know, the space four discussing capital punishment the the way in which the story has been portrayed in the press is correct. And if anything it fails to identify just how horrible this decision is. And this also dovetails with the issue that I was talking about in our bonus episode to fifty one point five in which I suggested that part of the game. If you're going to have a right wing activist supreme court is to disguise your activism by ruling. Ling on procedural grounds. Knowing full well that your ruling on substantive grounds. And this case, I is that to eighteen hundred grade, let's I want to clear up a couple of misconceptions one thing that as far as I know, no media outlet has pointed out, and then another that is sort of a sumo in in cases like this. So point number one Dominic Ray who was convicted of murder and is undisputedly a believing Muslim. This is a question about certain religious accommodations that Mr. Ray asked for in connection with his execution. The first one that no court decided to pass on is ahead to do with a challenge to the method of execution itself. Now, I I am not a Muslim. So I don't I can't wait in on this. But Mr. Ray claimed that. Being executed by lethal injection would be offensive to his religious beliefs. Alabama's one of three states that now permits execution by nitrogen fixation, which is what it sounds like this it again, I wanna get to down a rabbit trail in this different groups have sort of gone back and forth about whether nitrogen fixation is more humane. Whether it's a good method for executing someone there have been a lot of stories on the the three drug cocktail that is used for lethal injections in the United States all the problems with that. I don't know how to weigh in on any of that all I know is that the state in addition to the the two issues that I'm about to talk about the state also just completely disregarded on procedural grounds. Mr. as request to change the. Method of his execution because they felt as though this was being raised in an untimely matter prior to that. However, so Dominic gray was scheduled to be executed and was in fact executed on February seventh he petitioned the district court and then appealed up to the eleventh circuit not a particularly liberal as as you know, seeking to accommodations in connection with his execution. Okay. And this is this is the other fact that I wanna just make one hundred percent clear. This case is not about your typical habeas petitions bright in it dominate does not contest his guilt. He does not say, I don't want the state to executing. All he says is I want the state of Alabama to to do one of two two two things. I. That the state of Alabama defaults to having a Christian chaplain in the room when you are executed, and that that person is instructed under Alabama state procedures to either hang back and be unobtrusive. If you're not Christian or to kneel down and pray with you. If you want him to pray with you. So hang weird we're gonna look back on this. And and this'll be middle medieval times as just insane. And so the first thing that Mr. Ray wanna was can't get get this chaplain out of the room when I'm being executed and the second thing he wanted was to have his imam present instead. This seems like a pretty straightforward request. And in in fact, the eleventh circuit said, yeah, we we we think that without ruling on the merits right because this was an emergency petition because it was filed on the the twenty eighth of January. And Mr. Ray was scheduled to be executed and was in fact executed on February seventh. So the eleventh circuits said, look, we do not have time to dig into the merits of this. But we're going to stay his execution long enough for us to adjudicate. Whether in fact, he mystery has a right under the religious land use and institutionalized persons act of two thousand that is basically Riffa for among other things for for federal prisoners. Okay. And the claim is pretty straightforward. Right. You allow? How Christians to have a person of their faith present to minister to them as as they are being executed, and it seems completely obvious that if you're going to do that for Christians, you ought to do that for Muslims that was the request the eleventh circuit said, and again three oh panel decision said that makes a lot of sense, right? Not ruling on the merits, but we're going to stay the execution and until we can rule on the merits that was then appealed by the state of Alabama to the supreme court and the options go well. Right because the supreme court, you know, it's Scott to be. Yeah. You would you would think. Right. If the supreme court claims to stand for anything claims to stand for religious, liberty strikes on this one. Yeah. Absolutely. And no, of course, the supreme court went five. Four the other way, the five Justice majority decided that they would vacate the stay of execution entered by the eleventh circuit and allow the execution to go forward before the eleventh circuit or any other court could rule on the merits of the underlying challenge. The reason for doing so is a single paragraph. I'm going to read that paragraph to you in its entirety. And then we're going to talk about how unbelievably disingenuous this paragraphs. So the paragraph says on November six twenty eighteen the state scheduled Dominic. Reyes execution date for February seven twenty nineteen. Because wet Ray waited until January twenty eighth twenty nineteen to seek relief. We grant the state's application devait the stay entered by the eleventh circuit. And then there is a citation and then the parenthetical for which this case is being cited says a court may consider the last minute nature of application to stay execution in deciding whether to grant equitable relief. So that's it. That is the sole justification. Sorry. You waited too long. I'm going to get to that in a minute. Because I I suppose we could steal man. The argument and say you don't want to incentivize waiting as long as possible. Go going all the way up to the dawn, you know, week before your execution and trying to game the system, and, you know, there needs to be some Finally, I I guess that's the best that that I can make a of of that argument. However, this is. Beyond pretextual this falls directly into the category. That I discussed in episode in our bonus episode fifty one and a half of the supreme court disingenuously rewriting the facts in order to dismiss procedurally a case that that they would otherwise have to rule on the merits and hopefully thereby avoid being tagged with an activist label because the interests here in we've got to execute this guy. Tomorrow verses maybe we're violating a person's constitutional rights seem very clearly to those equities obviously to trend in the other direction. Yeah. Talk about the ultimate irreparable harm. Yeah. Right. It it's much worse than that. An and. I'm going to read from the eleventh circuit, right? So by the way, this opinion was in front of the supreme court when the five Justice conservative majority decided that they were going to ignore this and kick out raise claims on the basis of sorry. You slept on your rights. You should've look you knew you were going to be executed in February back in November of last year. Why don't you wait till January? We here's what the eleventh circuit says here, however arguments, suggesting unreasonable delay on raise part are far less. Compelling for starters, a review of the relevant statutory text would not have put Ray or his lawyers on notice that the institutions Christian chaplain would always be present in the execution chamber or that raise imam could never be the Alabama code only says that certain persons, quote may be present at an execution. It does not say that the chaplain will be present. And then quotes the code which I have looked up. The and the eleventh circuit is correct. It lists. Both the chaplain end, quote, the spiritual adviser of the condemned as among those who may be present without drawing any distinction between where those two individuals will be situated during the execution. So so we might that. It would be fine. Like, it's it sounds like he thought this wouldn't be a problem. Yes. As the eleventh, circuit says, even the most careful review of the statute by Ray or his lawyers would not have revealed that the prisons chaplain will stand in the execution chamber while any other spiritual advisor would need to be a separate room. As it turns out on actual facts. As Ray was getting down to two weeks before he was about to be executed. He said, okay. Well, I I wanna have my mom present to to minister to me as as I'm being executed and on January twenty third that was when Ray asked and said, okay. So how you gonna arrange this? And that was when the prison said, no, we don't have ima-. Are you kidding me? No chance he was denied his accommodation on January twenty third and filed his complaint on January twenty eight. This is unbelievable. Not only. Oh, you wanna say unbelievable, right. It gets worse. January. Twenty third was a Wednesday the twenty sixth and the twenty seventh were the weekend. The twenty eighth was Monday morning. So in other words, his lawyers in. In two working days turned around and filed a petition in the district court, which then worked its way up to the eleventh circuit, and then to the supreme court that initial pleading was filed in two days, and let me tell you if raise Liz, how hard it is to file these sorts of things in two days, and if raised lawyers had failed to raise something, right, then you would have had all sorts of problems associated with failure to raise. Right. So not only did he have to turn it around into days, but his lawyers had to turn around a polished work product that preserved all of raise claims with respect to religious accommodation that survived the scrutiny all the way up through to the supreme court to do that in two business days. And have the supreme court's say, you you slept on your rights is a is believable. How do they get away with this? I don't understand it. This is the second thing. Now where the the five Justice a whole brigade is like, oh now the sky is red sorry. And then what I do know. This guy's blue what he talked me. It's in the it's in the record. So the the eleventh circuit said, no skies blue, we know the sky's blue. And then you're saying guys read what how how do they keep doing this? I don't understand it. The I'm gonna read a little bit more from the eleventh circuit right because not only is that the inference. But in fact, the state has never argued the position that the supreme court invented as grounds for Robert sign on. I I would hope there'd be somebody. You know, you figure you got the three to four just totally lost votes. But I man this is I'm going to upload the eleventh circuit opinion. But this is from page twenty six. Onto twenty-seven the state has provided no evidence that Ray would have learned at any point about these policies or that he could have filed a lawsuit challenging these policies any earlier than dick according to Ray, and it is unreal butted on this record. He I requested and was denied accommodations based on his religion on January twenty third. The state has not provided us with any evidence that renew or should have known that his religious beliefs would not be accommodated prior to January twenty third or that he had any opportunity to request an accommodation prior to that date, given the positive evidence. It is not altogether surprising that the state has not even clearly argued that Ray knew or should have known sooner. That has beliefs would not be accommodated. I could go on. But this is so the stories that you have read are correct Alabama has an institutional policy that says we're going to stick a Christian chaplain in the room when you're executed, and that's all you get. I will I will point out that the state agreed to accommodate half of Mr. raise requests voluntarily and excluded. The chaplain from the room while dies was was being executed. Did not concede to the the presence of the Amum. I I'm at a loss. How hard is that like what is going to ask you? What is even the Emmys kind of a little outside of the scope of the lawsuit? I guess, but like why is this not just done is just so Alabama's a-hole says that. So the again, I worked for California state prisons in the budget department and on our line items for salaries and stuff are all kinds of religious different re religious leaders or whatever that the come in Chaplin's. So I think in California, this is just the state decided, we're jerks. Hey listeners, you know. 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The state of Alabama here. That's a challenge. The argument that is made is a an interest in safety and security that says having somebody in the room when you're being executed that person needs to follow certain protocols and needs to be trained in how to be present in the room such as not to interfere with the execution. I will tell you the supreme court's four sane Justice minority led by a Justice only Kagan Rodat descent, which asked the state, which says the state has offered no evidence to show that it's wholesale prohibition on outside spiritual. Visors is necessary to achieve any goal in prison security, which I've no doubt that prison. Security is an important is an interest of that Conrad a compelling governmental interest, and then Justice Kagan asks why couldn't raise imam receive whatever training an execution protocol that the Christian chaplain received the state has no answer. Why would it be sufficient for the imam to pledge under penalty of contempt that he will not interfere with the state's ability to perform the execution? The state doesn't say. That's that is the argument. The argument is we have to control who's in the room. Why can't be the imam? No answer. It it. It's it's it's really troubling. It's really really bad and the to take aways that I want you to remember here again, not remembering pleasant stuff, but the two takeaways our number one win. This supreme court says that it is pro religious liberty. It means we have convincing proof right here. It is pro religious liberty of the majority religion in this country, only if you are Muslim they do not care about your religious liberty. There is no way to square this with any of of the courts holdings on on Christian religious liberty, and and number two to to be on the lookout for the supreme court using procedural protection devices to reach the kinds of outcomes that they want to reach. We warned you about it. Three days ago. And this is yet another illustration of that. I I wish it weren't terrible. But but it is it's it's it's as bad. It's as bad as the mainstream press is making it, look if not worse, do we at least get some nice blistering dissent excerpts to read or or or now are there any good? You know, like Rb g ah Di said that right? I'm again, I'm yeah. RB J notorious Arba g anything and anything yet comfort. Us descent is is written by Elena Kagan who is not. Nicer. Yes, she lacks the rhetorical flair of our BG. You should read it. It's where we're gonna link this. It's it's a little bit over a page. And and what she says she says very matter of factly. Right. So she says the Alabama prison where Dominic will be executed tonight. Regularly allows a Christian chaplain to be present in the execution chamber. But Ray is Muslim and the prison refused. His request to have an imam attend him in the last moments of his life. And then concluding given the gravity of the issue presented here. I think that the decision that the majority's decision is profoundly wrong agree with her on that. I I will point out again, the the standard that the five Justice majority has to use in reversing the decision of the eleventh, circuit is the standard of abusive discretion. So so in other words, not only must the supreme court be convinced that the. That the eleventh circuit was wrong. But that they were clearly wrong, right? That it was an abuse of discretion is one of the highest standards in Veloce, right because right discretion means it could be exit could be why. And you might say, well, you know, the court went with ex I would have gone with y but it was not an abusive discretion for them to go with UAE. And in fact, you see that all the time in pellet litigation right to say, no, it could not have been extra. Why it could only have been X is the supreme court saying, no, the eleventh, circuit could only have held as a matter of law that this request was untimely. That is not supported by the record. It is. It is a there is no way to justify this that application of the facts to the law, and again, this another one of these, you know, our friend Eli Bosniaks, you know, make it black test. If the facts were reversed if this word Dearborn Michigan and prison had a policy whereby an imam was always present in the execution chamber and Christians were not allowed to have their priest come in and Neal. This wouldn't have gone any right? It would have been. It'd be Fox News for it would be absolutely right sharia law in the United States. There's no way that the prison would not have immediately accommodated. And look again. It would be one of those rare instances in which we're on the same side is Fox News. We would have said Guinot, absolutely, right. Like, if you if you typically have an imam present in the in the execution chamber, then obviously you should have the Christian chaplain present not hard at all to understand the minute you reverse the identities. What do you think it's like for the same justices on the supreme court in? Oh, I we have the whole oh RV in Scalia were friends. I I don't know how that was possible. But like, what do you think it's like for for Kagan for semi-arid be like, well, we got a rapist on the court and people who just decide that Muslim stone have. The right to be killed with dignity. I I like to think that. Intern. In Scalia would have come out the other way, you know. I I may be right to sizing him on the most you talked about so many of his cases where he's specifically protects Christians in no other religion. No, you're right. I am romanticizing now because now he's dead. So now it's easier for me to you know, just like opening arguments. Good friend, Richard Nixon. It's it's easy to do that. Yeah. No it. It's. Yeah. Hey, folks today show is brought to you by ZipRecruiter. I've mentioned it before I used to work for the state in a supervisory role, and let me tell you hiring people is not as fun as you might think if you've never done it before you can go through those resumes, and you usually just see a stack of unqualified people who didn't fill it out ride or just sent out a batch resume two million positions of that. They're not even really a fit for it can be a nightmare. But I'll tell you what going to ZipRecruiter dot com slash a will make that process a whole lot easier, and it's important too. Because if you're under pressure, you need to fill a role, you're the works piling up you wanna hire someone fast. But if you if you have the wrong person, you're stuck with it. It's very hard to unh- I or somebody it's a lot easier to hire the right person right away. And that's what ZipRecruiter helps you do. 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It's like why not wouldn't something's outrageous? I feel like that this this this idea that oh, we should all be friends afterwards. And whatever that. Preserves the status quo. That's just the tool for people doing outrageous things to continue to do. Outrageous. Thanks. It's like, yeah. I wanna be able to do outrageous fact, ignorant things on the supreme court. And then I want everyone to like me after word anyway. Sorry, I know I it it, you know, rant on brother, Tom. I don't know what to say to that other than. I think as as we move into a time period in which everything is politically polarized to to an extent that it was not in the past that I it wouldn't surprise me to see those norms breakdown. And then he do let me do thirty seconds sidebar on that. Right. You can determine statistically in the past that when the supreme court was profoundly liberal during the Warren court in the early seventies. Right. No question supreme court was liberal the supreme court authored its decisions at the time that meet the strongest criteria for left-wing judicial activism. Right. That is cases that break from prior precedent and do so on what what appear to be outcome driven grounds. Right. If we're gonna if we're going to be one hundred percent fair. In the criticism. That is raised on the right? You do not see the same level of five four decisions come about. We know where they are because of an a narrow partisan basis how the justices lined up and the clearest example for that. As we have pointed out is Roe v. Wade was a seven to two opinion. Right. Rove away was among the justices. Not particularly controversial at the time. It certainly was not a close opinion. And and you know, and there are the only cases that I can think of and we've done a pass deep dive into into both of these that really fit the model of contemporary jurisprudence were the supreme court's capital punishment cases, right? The firm in Georgia and Greg feature in which the supreme court, you know, backtrack very quickly after determine. Winning a plurality opinion that capital punishment violated the eighth them into the constitution. And and I think the reason for that has to do with the been deeply held personal convictions of the justices, including William Brennan said personal hero of mine who I think very candidly admitted that you know, it was the intersection of their deeply held personal convictions that that sort of drove their jurisprudence in those cases. So those cases were controversial and narrow and partisan, and the supreme court reversed itself that is the exception that proves the rule from the nineteen seventies. I cannot again, I, you know, I don't know what it was like in eighteen seventeen when the judiciary was dominated by federalists. And federalists as a party were dead at the national level, right? I can imagine. There was a lot of craziness going on in the courts at that time. I don't really have access to that. It's super hard to read early nineteenth century court opinion. So haven't read a whole lot of not since loss go anyway. But I can tell you, you know, we we try and flag the both sides do it too. This is not a both sides to to to the same degree when the supreme court tilted left. It did not do so in an as aggressive and as partisan away as the supreme court does right now this supreme court to the the rank whisked court was not you know, had unpredictable decisions and had a lot of nine oh in eight one and seven two decisions. Right. It's this is the. Continuation of a process that is, you know, destroying our political system. So I I realized that was a longer sidebar than time on your thirty seconds. Lightening round there. It is. Well, that's depressing. But we've gotta move onto Yoda mountain, which we'll see how depressing amount is maybe just the normal amount. Here we go everybody start yodeling. It's gonna be gray. And it's I asked you for the rest of your life. Because people have got to know whether or not their president's across you're not aware of any contacts during the course of the election. How many times have to answer this question? Can you? Rooms. I know you have to get up and ask a question. So and put Russia is a ruse. I'm not a crook. I'm not a crook. Okay. Andrew Manafort lot. Once a year. Isn't it? What's? But but you're telling me, this is a a more efficient version of this. What what happened? Yeah. So we discussed Paul manafort's plea deal back in episode two eleven and that plea deal included as part of it. What I am lobbying for all lawyers in the future to start calling Manafort clauses in the in the clearing those are specific provisions that say, hey, if Uvira late any provision of this agreement, not only do we as the government gift to tear this agreement up if we want to but you can't withdraw your plea. We give up we are no longer bound to do any of the stuff we promised to do and crucially right there. There are two things that the government is allowed to do in the event. Paul Manafort breaches his plea agreement. The first is with respect to his to Manafort sentencing to which they agreed it releases the government from its obligation to say, okay, you have accepted responsibility. You've ignored your guilt. And as we've talked about under the federal sentencing guidelines, you get a reduction in your sentence, the levels, you move down the the chart if you've accepted responsibility. So number one, it frees up the government to not have to abide by that deal. Because obviously, if you're lying to them, if you've breached, the then you haven't accepted responsibility, and then number two, and and this is by far the most important one because it is going to answer the question that that everyone has had this paragraph. Thirteen subsection b in the event of a breach, quote, the government and any other party will be free to use against. Your client that is Paul Manafort directly and indirectly in any criminal or civil proceeding. All statements made by your client, including the statement of the offense that is the facts to which he pled guilty and any of the information or materials provided by your client, including such statements information materials provided pursuant to this agreement or during the course of any debriefings conducted in anticipation of or after entry of this agreement whether or not the debriefings were previously part of a proffer protected debriefings and your client statements made during the proceedings before the court pursuant to rule eleven of the federal rules of criminal procedure. Now, what is all that gobbledygook mean that means everything Paul Manafort has said to Muller's team in connection with his arrest in connection with his plea deal in connection with pleading with them to enter a plea deal. All of it is now released and Muller's team can provide that too. Other federal entities, right? They can provide it to the department of Justice in particular, the attorneys, the US attorney's at the southern district of New York who have brought the charges against Michael Cohen and some some other related proceedings. We'll we'll talk about they're free to give that to the New York state attorney general they're free to share that with my buddy, Brian frosh. And I in in connection with the state of Maryland and the district of Columbia's emoluments lawsuit against Donald Trump in short. This is now a situation where everything that Paul Manafort has ever said to behind closed doors to investigators is now fair game to be used in any subsequent proceeding against Paul Manafort. That's a big thick and and at answers. Kind of the the number one question that I got in in connection with this determination as I should take a step back and say exactly how this this came about. So. Paul Manafort was about to be sentenced, and the government filed a motion and said, we think that Paul Manafort has violated his plea deal, and that he's done so in in five ways, and if you find that he has violated any of that than we're released from that plea deal, and we can do the stuff that I just said that they can do this is judge Jackson saying that as a factual matter on the basis of a sealed hearing a closed hearing. So we don't know exactly what evidence was was put before we can make some some informed guesses. Judge Jackson found that by on three of the five arguments that the office of special counsel has met by preponderance of the evidence, right? That is more likely than not that Manafort number one made false statements to the FBI the office of special counsel and the grand jury can. Turning the payment by firm? A to the law firm that is in connection with you might recall, the scadden Arp. The law firm is Skadden Arps them. You might recall these Skadden Arps lawyer who pled to making false statements in connection with reports to buy and between Skadden Arps in the craning government. Okay. So point number one. They lied about the role that that that law firm played point number two that the officers special council has established by preponderance of the evidence that Manafort made multiple false statements to the FBI the office special counsel in the grand jury concerning matters that were material to the investigation, particularly his interactions and communications with Constantine Kalinic Russian intelligence asset and that the office of special counsel. This is the third one has established by preponderance of the evidence that on October fifth. Eighteen the defendant intentionally made false statements that were material to another DOJ investigation. Another DOJ investigation here, probably means the the case against Michael Cohen. We we don't know. But that is when it says another investigation the most prominent that means not the officer special counsel, so unconnected to or I should say related to but not brought by Muller's office is the charges that were brought against Michael Cohen. So there is now a determination by judge Jackson that that Paul Manafort lied, and therefore the government is not bound by the terms of the plea deal the significance of that as I've said are are twofold, and they impact the tomb. Most commonly asked questions that I get right? The first is. Does it? This may right. Isn't Donald Trump just gonna pardon Paul Manafort, anyway, right and the answer to that is he might? But as we've talked about Paul Manafort is on the hook and has pled guilty to the underlying facts that could easily be used to establish state court tax violations. We talked about that in two eleven can go back and listen to that one. And now those proceedings can use everything he's ever said. So it I feel really strongly that reasonably talented chimp could get a conviction of Paul Manafort in in state court. That'd be you know, what a talented one you're running. Yeah. The ones that can you know, you'd have good table chimp court to see I'm telling you that her show off. Yeah. Our our show ideas are so so no law that says a chimp can't be a lawyer. They we go all correct. And then and then number two, you know, people have asked will what about the whole sentencing thing? And and I thought this was worth I won't put a time. Limit on this but worth a a tiny Faure manafort's. Original sentence was offense level thirty seven thirty seven to offense level thirty. I can't never crack those last seven levels thirty seven a water a boss. Say on offense level thirty five. I I don't know. How many forgot past that one? The chart only goes to forty three right forty three. And then there's the cloud level forty four. But we won't talk about that. That's life imprisonment. Right. And so immediately Manafort will go from thirty seven to a forty right because the thirty seven was the result of the three level downward departure due to acceptance of responsibility. That's gone. It will probably be it will not be difficult for judge Jackson to bump Manafort up to a forty three because his lies will aggravate certain other factors. And again, you've got a get another three levels and most of these are either plus two or plus four. So so Manafort is going to go from two hundred ten months in prison to life in prison, and you might be thinking. Well, you know, he's like a hundred and six years old and chain smokes. And you know, seems to wears lovely ostrich jackets. It was he really going to survive, you know, two hundred and ten months in prison. Anyway, you know, probably not. I mean, this is this a good time. I got asked this question multiple times in Email, this this is a good time for for a sidebar to the side bar to point out that there is no parole in the federal system. Let's people think there is. Federal parole was abolished in nineteen Eighty-four. Right. So for a great majority of our listener, at least a strong plurality of our listeners there has not been federal parole for as long as you've been alive. Never thought about the house that never come up before. That's interesting. I know what there is is there. There is credit for good time served. Those are limited to fifty four days for each year served and the statute is eighteen USC thirty six twenty four b which says the prisoners are eligible if they exhibit quote, exemplary compliance with institutional disciplinary regulations and of quote so for every year, you can get fifty four days off of your sentence. The the implication of that is most prisoners will serve eighty seven percent on average of their federal sentence. So. Not a parole, but but is of you know, slight reduction, but but nowhere near sort of the the reputation that you know, that that I think parole has in in the federal system that, you know, people think oh, you get twenty years, but you're only going to serve nine of those. And that it that's that's not the case. The sentence means almost ninety percent of it was just part of the Reagan era, criminals have too damn easy kind of thing. That's exactly what it was. And and it it also flags the answer to one more question that sometimes comes up good time credits only apply to sentences longer than one year, but less than life imprisonment. So if Manafort is bumped up to life imprisonment to level forty three he will not be eligible for any reduction in in his sentencing and. This also answers why sometimes you will see first time offenders be sentenced to one year and one day in prison and the answer to that is because you get the fifty four days of good time, actually better one year. One day is better for you than one year. Correct. Yep. So giving somebody here in a day means you're probably giving them five to seven weeks less of a sentence than than you would be if you sentenced to one full year. So I thought I thought we might end with if you know, if if not a happy thing, at least, you know, a little bit of a of a diversion off of yodel mountain into how do you understand when when you see sentences beaten get handed down? So so there you go. That's that's Paul Manafort that is the consequence of judge Jackson determining as a matter of law that he violated his plea deal with Muller's office offices special counsel. It is really really bad news for Paul Manafort, no matter how you slice it and couldn't happen to a nicer guy. All right. Well with that said it is time for our co-favourite segment of the week. Yes. Our top patrons are hall of famers. And that is of course, people pledging at the five dollar level or above on patriot dot com slash law. And of course, you gotta do that for a month to get your weekly shout out, and we start with bees you and Bengals custom in handcrafted, jewelry, Stephen Baltica Baltic tie white. What why me St.? Baltica tie Sandoval choice early follow unlocks biter decrease. K? Sure. Cut maps, we are going to build a death star and make Alder and pay for it. Iota Lona little LA. He who released my work schedule's trapped in Washington Snowmageddon with children sent health. I patron shoutouts probably not the most efficient way to to get help. But you know, that words keep keep doing that. We will send a team of sled dogs right away. Ron is a maga- fan is an anagram of is an anagram. That's good. That's very met. I think we've we fish Lee killed that one. All right. Stormy mckendrick. 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Joining us for t t t be this week is special guest AG from Muller. She wrote so excited have you? How you doing? I am so good. Thank you for having me. And thanks for coming on Muller. Share-out? You're your. Andrew. Thanks, guys, as you know. I'm just teasing. I've just teasing. Correct. Choices were made in the in that. All right. Let's deal with our question this week. And I have to emphasize AG don't help me. You know, you gotta let me take first crack at it. Sanctity of the game. Make sure I take I crack, and then you can tell me how I did as I'm sure. Are we getting a don't tell me we're getting real property? You're are you going to embarrass me in front of our guest? Not only are you getting property. But this question is like eighty seven pages long. I apologize. It's just it's what came up in the book. We've had some great coincidences like, you know, interest idle being on and us getting. Question case, he worked on that was pretty cool. I wasn't going in that one. We had the we had the abortion question on the episode where we were covering June medical services, and we have Jeon so she gets to sit here and listen to me Rita short. Now. Question. All right. So the two of you. Here you go. Here's your question. A businessman owned a hotel subject to a mortgage securing debt he owed to a Bank the businessman later acquired a nearby parking garage financing part of the purchase price with alone. From the financing company secured by a mortgage on the parking garage. Two years thereafter, the businessman defaulted on the loan to the Bank which caused the full amount of that loan to become immediately due and payable the Bank decided not to foreclose the mortgage on the hotel at that time. But instead properly sued for the full amount of the defaulted loan the Bank of tained and properly filed a judgment for that amount. A statute of the jurisdiction provides quote, any judgment properly filed shell for ten years from filing be a lien on the real property then owned or subsequently acquired by any person against whom the judgment is rendered. And of quote, there is no other applicable statue. Shoot except for the statute providing for two she'll close mortgages, which places no restrictions on deficiency. Judgments you still with me? There were two thirds of the way through not even close. Shortly thereafter, the Bank bought brought an appropriate action for for judicial foreclosure of its mortgage on the hotel, and if it's judgment lien on the parking garage. The financing company was joined as a party defendant and appropriately sued for for closure of its mortgage on the parking garage, which was also in default all procedures were properly followed and the confirmed for closure sales resulted in the following the net. Proceeds of the sale of the hotel to third party were two hundred thousand dollars less than the bank's mortgage balance the net. Proceeds of the sale of the parking garage to a fourth party where two hundred thousand dollars more than the financing companies mortgage balance K super complicated fact pattern in these happen every once in a while now how should the two hundred thousand dollar surplus. From the sale of the parking garage. Be distributed. It should be paid to the Bank. Be it should be paid to the businessmen. See it should be paid to the financing company or D. It should be split equally between the Bank and the finance company. So they have a four sided coin. Yeah. I don't I don't care the answers. I don't care this is. So if you're not familiar with the bar real property is the part where you just quit because there's no point even trying I've discovered so might test taking strategy here would be not to waste my precious time with with the fact better, I I honestly can't even follow this one. This is real property questions. Are it's it's unfortunate that we couldn't have a one that was a real question today. But that's okay. Let's see. That's sorry. I do while Thomas is reading I will tell you like part of the sanctity of the game. Here is I also don't read the like, I literally just edit the questions in paint from the book, and I don't read them. And I don't read the answer. I mean, I don't read the explanations for the answers. So that I'm not like giving anything away while I read the question because one of our listeners told me that like they they think I have tell when like Thomas gets the answers, right or wrong. And the got a couple that way. So I do my best to be as cold as I can coming into it had. I put my finger on the scale. I definitely would have gotten a less horrendous question here. All right. Let me see if the last few cents is offer anything financing Comey. Join for probably sued for foreclosure, the mortgage all procedures were followed and the confirmed foreclosure sales was on the phone. They're probably less than the bank's mortgage Valance the net. Proceeds who sailed parking Russia for the more. I have no idea. This is stupid. Let me let me go with. I literally can't even this is one it sucks that we have a guest because I would normally read this for like a minute of silence. But I'm not gonna do that. So let's do how about it's paid to the I feel like the banks always win. So I'll guess a. Off this week. We'll we'll come back to it next week with a real question. I mean, this is seriously if you were taking this Andrew would you even bother with like look at this? It's not worth it. Just give up as the SAT. When you don't know it just don't waste your time. I have an answer do it. All right. When did we find out if we're right, by the way when onto show? Yeah. Oh, I see. Okay. Well, normally, I think that this would go usually I would say it would go to the businessman because if the Bank wanted to take short sale on the other property that's their effing problem. However in this case, if judgement was properly filed there's a ten year lean on any real property owner subsequently acquired by any person against him to judgment is rendered. So this guy defaulted after two years that falls within the ten years. So the Bank filed a judgment at filed at properly the judgment comes with a lean the Bank. Has the lean? So the Bank gets the money. All right. So you are also going with a then so you're green with my expert analysis. Always win. Wow. That was an intelligent answer. I'm glad we had you here to actually give give listeners of you know, some value in this segment for this week. All right. So the questions twirly word it though because it says that the businessman defaulted on the loan to the Bank. But it doesn't say which loan. He's got to at this point. He's got a partially financed parking garages a fully financed hotel. And it also doesn't really say that the financing company. A Bank are the same or two separate entities where you have to soom they are because there's two separate answers for them in the answer. Happens often. Seeing financing company come in separate from a from a Bank. But what happens often that the the question? You know, where you're like. Oh, I wish it would tell me this. But I guess you have to assume something. Yeah. But all right. Well, let me say he's our official bar exam. Prep questions from the national conference of bar examiner. So like, this is what we actually get stuck with as as lawyers would be lawyers. When we're when we're when we're trying to study for this exam. So what you're going through is a tiny fraction of what I went through when I tend to take this exam because in the real world, you'd be able to get those answers, you know? Yeah. You know? Yeah. The the, but then the problem is the answer to every bar exam. Question would be I don't know. Let me ask the client about that. And it might make it easy to gain the system. Okay. All right answers are locked in. If you wanna play along with TB, you know, how to do that just share out this episode on social media include your answer include the hashtag, your reasons therefore, and we will pick a winner over the weekend and shower that person with never ending fame and fortune fame and fortune guaranteed. And of course, tune into day for a special interview with AG of Muller. She wrote thanks so much for coming on. Thanks, Andrew for embarrassment in front of our steamed guests, and we'll see everybody. Stay. All right. Thanks so much everybody for listening most of all to our patrons. Of course. And Andrew for keeping us enraged. We're enraged moping nuts. Now, we're not the enrich moving. About the the spring court. Stay mad everybody and keep voting with that anger. And we will see you well along with our special guest returning on Tuesday. This has been opening arguments with Andrew and Thomas if you love the show and wanna support trips odes, please visit our patriarch page at patriot dot com slash off. If you can't support us, financially, it'd be a big help. If you leave us a five star review on itunes, Stitcher, or whatever podcast delivery vehicle you use. And be sure to tell all your friends about it for questions, suggestions and complaints Email us at open arguments at gmaiLcom, the show notes and links are on our website at WWW dot open. Argh dot com be sure to like our page on Facebook and follow us on Twitter at open arts until next. This podcast is production of opening arguments. Media LLC all rights reserved. Arguments is produced with the assistance of our editor. Brian Siegen, our production assistant, Ashley Smith and our researcher Deborah Smith special. Thanks to Theresa Gomez in the entire OA Wicky team, follow them at at OA Wicky and a big thank you to our Facebook group, moderators Elisha cook, Natalie Newell, Emily waters. Eric brewer and Brian check out the opening arguments Facebook community and finally thanks to Thomas Smith for creating the show's theme song, which is used with permission.

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