Chauvin Trial Day 26, Ashli Babbitt Shooting No Charges, Democrats SCOTUS Court Packing​

Derek Chauvin’s defense comes to a close as Eric Nelson rests and Chauvin pleads the Fifth. The officer responsible for shooting Ashli Babbitt will not face criminal charges. House Democrats unveil plan to pack the U.S. Supreme Court. And more! Join criminal defense lawyer Robert F. Gruler in a discussion on the latest legal, criminal and political news, including:​

• Eric Nelson and the Chauvin defense team rest their case.​

• Derek Chauvin pleads the Fifth and speaks in open Court outside the presence of the jury.​

• Government prosecutor Blackwell re-calls Dr. Tobin to rebut testimony from Dr. Fowler regarding carbon monoxide and its effect on Floyd’s death.​

• Judge Cahill warns the state about the possibility of a mistrial if certain information is admitted in Court.​

• Dr. Tobin’s testifies in opposition to Dr. Fowler and gets close to the line in a tense few minutes of sidebar.​

• Court closes the evidence portion of the case as the attorneys and Judge finalize jury instructions.​

• Department of Justice announced yesterday that the officer responsible for the shooting and killing of Ashli Babbitt during the Capitol Hill Riots will not face criminal charges.​

• The officer, who remains unidentified, shot Ashley Babbitt near the Speakers office out of self-defense and protection of elected officials.​

• Questions about whether this shooting is a double standard in terms of police accountability.​

• Democrats present plan to expand the United States Supreme Court.​

• President Biden announced a 36-member commission to study packing the court.​

• Representative Jerry Nadler and other House Democrats introduce the “Judiciary Act of 2021” to increase the size of the court from 9 to 13 members.​

• Sen. Mitch McConnell responds and we review reaction from other elected officials.​

• As always, your questions and live Locals.com chat after the news!​

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Transcript

Speaker 1: 0:00

Hello, my friends. And welcome back to yet. Another episode of watching the Watchers live. My name is Robert ruler. I am a criminal defense attorney here at the R and R law group and the always beautiful and sunny Scottsdale Arizona, where my team and I over the course of many years have represented thousands of good people facing criminal charges. And throughout our time in practice, we have seen a lot of problems with our justice system. I'm talking about misconduct involving the police. We have prosecutors behaving poorly. We have judges not particularly interested in a little thing called justice, and it all starts with the politicians, the people at the top, the ones who write the rules and pass the laws that they expect you and me to follow, but sometimes have a little bit of difficulty doing so themselves. That's why we started this show called watching the Watchers so that together with your help, we can shine that big, beautiful spotlight of accountability and transparency back down upon our very system with a hope of finding justice. And we're grateful that you are here and with us today because we've got a lot to get into. It is day 26 of the Derrick Shovan trial and the close of evidence, meaning we're done with the evidence portion of this case. The defense rested Eric Nelson was in court this morning. And we had a little bit of a interesting activity. We're going to break that down. We had Derek Shovan pleading the fifth, so he's not going to be testifying. Then we had some back and forth about a rebuttal witness who was Dr. Tobin, who came into court today. We all like on the verge of a mistrial. We had a lot of sidebar activity today. So we want to break down what happened now. It was a very short day. It was about an hour and 56 minutes. I think of court time, a lot of breaks in there, sidebars and back and forth, but a lot of activity, but they did close up shop for today. So they are, uh, for the trial. They're going to be doing closing arguments on Monday morning, and then we'll see how long it takes to get a verdict from the jury. But we've got a lot to get into there. We're going to change gears. We're going to talk about the Ashley Babbitt shooting because yesterday we got a press release over from the us Capitol Hill police. They're saying in the end, the department of justice actually saying that no charges for the officer who shot Ashley Babbitt. And so many people are scratching their heads saying, Hey, the cops are getting prosecuted all over the country for shooting and killing people. Why not? Ashley Babbitt? Is this a political choice, a decision? It sounds like a lot of these other officers are being prosecuted, but maybe it's because of who they shot or where they shot them or what political ideology. Those victims are a part of versus Ashley Babin. And so people are scratching their heads and we're going to go through the press release that did come out from the department of justice. We're going to look at an alternative viewpoint that was drafted by a gentleman by the name of techno fog, big fan of his work. So we're going to go through his analysis and we're going to come to some conclusions and take your questions and get your thoughts on this. Whether there is maybe a double standard that exists out there. Then we're going to wrap up the show by talking about some of the latest news that the Democrats are now talking about, packing the courts, something that we've already seen or speculated about on the show sometime ago, right after Ruth Bader Ginsburg passed away. And they started to, you know, soon as Trump got Amy Coney Barrett on the bench, then we started to see a little bit of a meltdown out there on the other side of the aisle. And they want to now reclaim the court. The white house in both houses of Congress are not enough. So they want to get the judiciary as well. So we've got a formal document now that has been submitted. A bill been submitted into the Senate. I believe we're going to go through that. We've got some reaction, I think from Nancy Pelosi and Mitch McConnell, cocaine, Mitch has something to say about it. So we're going to listen to him. We've got a lot to get to, so we want to jump right into it. But before we do, I want to invite you to come over to our platform on locals.com. So if you go over to locals.com, you can search for our community there. It's called watching the Watchers. And as we go live throughout the show, there's a live chat happening right there. So you may be watching this on YouTube or on Facebook or elsewhere. But if you want to ask a question or submit a comment or submit a criticism, the place to do that is that watching the watchers.locals.com, Ms. Faith, Mr. Mahler, back there, they're clipping questions and comments and thoughts, and they're putting them into my slide deck that I'm about to go through speaking to the slides. If you want a copy of the slides, you can also download them at local. So go to locals.com, find our community called watching the Watchers, support the show, join a community of other people who like to have conversations about freedom and some of the founding principles of America that we feel sort of have gotten a stray from us. So that is the place to do that. One more time, watching the watchers.locals.com. All right, so let's get into the news of the day. Derek Shovan 26 of trial. We are wrapped up with the evidence portion of the case. The government presented their case in chief, the defense presented their case. And we had a little bit of activity today in terms of dealing with bottle witness in the form of Dr. Tobin, who came back out today and took the witness stand. But there was a lot of activity going on today in particular about Derek Chauvin's invoke the fifth. And then when we got into the rebuttal witness, there was a little bit of a hairy couple of minutes there where it was looking like the witness was going to say something that was specifically prohibited by the judge. Judge said, you are not allowed to talk about that. And he got really close to talking about that. And the judge caution to everybody that if you talk about this one little bit of evidence, there's going to be a mistrial in this case was of course would be catastrophic. And if we got really close to that, and some people are saying that we cross that line, but I want to explain maybe an alternative perspective and why the judge didn't call for a mistrial today. So as is usual, let's go to our trial board and see who we had in court today. We saw a lot of course, of Eric Nelson and we actually heard from Derek Shovan, Derek showman pled the fifth. So we're going to hear from him today. He actually spoke in court on the record having a conversation with the judge and Mr. Nelson, uh, informal open court, but it was not in front of the juror, the jurors, the jurors didn't see any of that. We also heard a lot today from Mr. Blackwell, he did the cross-examination or the reexamination of the rebuttal witness who turned out to be Dr. Tobin, Dr. Tobin, as we know, is this fellow right here? He's the pulmonary doctor. This is the government's witness list. And we're missing about, I would say about 10 witnesses that are just not on this slide. They'll be on a different slide later. But, uh, this is the rebuttal witness who came back in and they brought him in to testify specifically about this guy. So this is the defense witness list. And Dr. Fowler, if you recall yesterday, I believe it was, was the only witness that we had. So it was all from beginning to end

Speaker 2: 6:23

And all day it was Dr. Feller. And one of the interns,

Speaker 1: 6:26

Things that came up in this testimony was this idea that he introduced what felt like he introduced to us this concept of carbon monoxide poisoning. So as he was going yesterday through all of the different permutations variables about how Floyd potentially died, he sort of said, Hey, look, there's a, an exhaust pipe right there coming out of that police vehicle Floyd's faces right there. So we're talking about low oxygen and this fixie and all this stuff, he's saying, Hey, if you get carbon monoxide in your blood system, it's going to attach and bind itself to the red blood cells, which will naturally displace the oxygen that would otherwise be attaching, would be binding to those cells there. It sort of, it sort of crowds them out so they don't have anywhere to attach, but he says it's very similar in terms of measurement to oxygen. So if you use an OXA, oximeter, whatever he called the right to measure the blood, sometimes it can't tell because it's so similar, your blood sort of has a similar color and whatever. So he's, he's introducing this idea, this concept that maybe the exhaust had something to do with fluid

Speaker 2: 7:21

It's death. And, you know,

Speaker 1: 7:24

From my perspective, I was like, Whoa, where did this come from? Nobody ever mentioned this before. And the reason why it stood out a little bit to me is because typically you have to notify the other side about that, right? If, if this is going to be a theory that the defense has then Dr. Fowler and, and Eric Nelson and Chauvin's defense should have notified the prosecution that this was coming so that they could prepare a defense or, or a rebuttal to that,

Speaker 2: 7:48

Or they could address it before

Speaker 1: 7:51

The evidence and this defense was presented. So the prosecution needs to know about what you are going to use in your defense so that they can prepare a response to that. So people think sometimes, you know, the court of law is like, you put a witness on the stand or you submit a motion, or somebody pulls out the smoking gun.

Speaker 2: 8:09

Oh, is this the murder weapon ever goes, Oh, Oh. And then,

Speaker 1: 8:13

You know, it's a, it's an acquittal and not guilty or a conviction or whatever, because it's some, it's a spot spontaneous reveal doesn't really happen that way. Now sometimes, you know, you'll have a witness who testifies differently than you're expecting, because you did an interview with that person and you knew what they were going to say, but the point of all this is

Speaker 2: 8:30

That the government sort of did not address

Speaker 1: 8:32

This carbon monoxide thing. And I was thinking,

Speaker 2: 8:34

Well, why, you know, why is that? Did they just gloss that over? Because Nelson

Speaker 1: 8:39

Was talking about it and they didn't address it. And so what happened today is a long back and forth about that issue,

Speaker 2: 8:46

Why we're going to get

Speaker 1: 8:47

Into that. But I just want to frame that out. We've got a whole segment on that. So we've got two segments, that's that issue, carbon monoxide cause of death. And now that we have this issue about whether carbon monoxide killed Floyd, the government wants to come and rebut that. And so we have a debate about this. Can they do that? W you know, they had their chance to present their evidence. Why didn't they address the monoxide issue earlier? We have a lot to fight about over that. And it's very interesting, but before we get there, let's start with sort of the big news of the day is that Derek Shovan is not going to be testifying. And so we have our first clip. This is a conversation between Eric Nelson, his defense attorney, and the, uh, Derek showman, the defendant in this case. And so they're having a conversation about invoking the fifth amendment, the right against self-incrimination. So Derek Shovan does not have to take the stand. And, you know, some people will say, well, he sh you know, he owes it to America to get up there and explain what was going through his eyes. And the answer is no, he doesn't, he doesn't know anything. Right? He's got the presumption of innocence right now. He is an innocent man sitting in that chair illegally. He doesn't have to say a thing. He didn't have to present a defense, and he would still be innocent sitting in that chair. And so sometimes that's kind of a hard concept for people to wrap their minds around, but he is. And so he does not have to testify. And so what's happening right now is a very, very important conversation where Eric Nelson is saying, listen, you know, you have the right to, I'm not telling you what to do or anything about this, because this is kind of a sacred, right. You know, the defendant always has the ability to testify and the defense attorneys, 99.9, 9% of the time going to tell you don't testify. Cause you're only going to do more damage to your case. Now Shovan was a little bit different. And I was a little bit sort of on the fence about whether to have him testify or not solely for the fact that he's a Fort, he's a police officer, former police officer, something like 17 years, or maybe more than that. So he's got a lot of testimony experience. He's testified probably many times in court. And so he's very familiar with it. Whereas the regular lay person, somebody who's not a former officer would not have that experience, but regardless, they're having a conversation. Now, the judge is going to make sure that he is not testifying. He, he understands what he's doing. So this is sort of an important moment memorializing this decision, because let's say he is a he's convicted on all three charges, right. He goes up to the next court of appeals and he says, well, I had conversations with my attorney. I wanted to take the stand. I wanted to go and testify, but he said, I couldn't do it. Right. And so what Nelson's doing is sort of protecting himself a little bit, but also making sure that Shovan really understands this decision he's making. So they're going to have a conversation. Then the judge is going to come in and just double check you, are you sure? You don't want to testify? All right. Cause this is it. No do overs. You don't get to wake up six months from now and go, you know, I would've liked to have addressed that issue. And this is it. Your one shot. This is that conversation in court this morning,

Speaker 3: 11:35

Mr. Shovan, uh, you and I have had several discussions throughout the course of my representation of you relevant to your right to testify or to choose, to remain silent. Correct. That's correct. And during the course of our representation, it's fair to say that you and I have had conversation multiple times, correct? Correct. You understand that you have a fifth amendment privilege to remain silent. Do you understand that? Yes. You understand that if you choose to exercise that right. To remain silent, neither the state, nor the court can comment on your silence as a sign or an indication of your guilt, meaning they can't say he didn't get up and defend himself. So equate your silence with guilt. You understand that? Yes. Alright. Now you also understand that you can waive that right. And testify. Do you understand that? Yes, I do you understand that if you chose not to testify or if you did, in fact testify, you would be subject to cross examination by the state of Minnesota. Yes. You understand that if you, uh, were cross-examined by the state, we could not attempt to limit the scope of your testimony. The state will be given broad latitude to ask him questions. You understand that? Yes. We've had this conversation repeatedly, correct? Correct. I have repeatedly advised you that this is your decision and your decision alone, right? Correct. Um, I have advised you, uh, and we have gone back and forth on the matter would be kind of an understatement, right? Yes, it is. Um, but after a lengthy meeting, um, last night we had some further discussion. Agreed. Right. And, um, have you made a decision today whether you intend to testify or whether you intend to invoke your fifth amendment privilege? Uh, I will invoke my fifth amendment privilege today.

Speaker 1: 13:34

All right. So as you could hear there, right? Good move for him. I think probably the right move on this. Not sure how necessary his testimony actually is at this point in time, we've had other expert witnesses talk about the defensive posture and about why officer basically about why everything that he did was reasonable. We've got an expert talking about that. So we don't need to hear that from him. We've got other experts saying that the use of force, so not about the reasonableness, but about the actual physicality, the physical consequences of the use of force. Other experts say no that wasn't even the cause of death. So there's, there's sort of nothing really that he can add other than some humility and some maybe compassion or empathy, if he can muster that up to convince the jury that, you know, there were other reasons for what he did. So sort of addressing the intent portion of the analysis. But the problem with that is that there's really not much intent that goes into this analysis. The rest of it is sort of about causation and about use of force and policies. And so they've got, I think, enough evidence or enough doubt as it exists right now, without having to introduce him into court. They also are very wary of the downside. So you sort of analyze the upside of having him testify versus the downside. And I think the balance sort of weighs out against him testifying because they were, you know, they would have a field day if he did take the stand and they would go into all sorts of different lines of questions that if he gets tripped up a little bit, maybe he sh he shows a little bit of aggravation or irritation or says something that has a little bit of a racial color or undertone or something. And that's it, right? That's the case jurors just say up there it is right. They were looking for that because they're looking for something to latch onto. That's going to help them justify their decision one way or the other. And right now, you know, it's, anybody's guess as to whether or not that exists, but if Shovan takes a stand, they could easily do undo all of the damage or the good work that they have achieved thus far with just one slip of the tongue. So very, very risky proposition. And of course they sound like they had a ton of conversations about it. You heard Eric Nelson say that was an understatement, right? They've probably been talking about this all a lot. And I would guess that it's knelt that it's a, Shovan saying I want to testify. Put me on the stand. It's probably Nelson saying, my man, you cannot possibly do that because you're going to get skewered. Right. He, and he knows, he knows his case inside and out. So they've reached a conclusion regardless. That's what's happening. He's not testifying because the defense has rested here is judge Cahill now going over two things, one confirming making sure that Shovan is, uh, okay with this, right? Th this is his real decision. And you'll watch when he says that anybody forced you or threatened you or promise you anything to enter into this deal or, uh, to, to avoid testifying. Did anybody coerce you or you under duress here watch Shovan, you know, it kind of goes, no judge, I'm not under duress. You know, kind of like not even a big deal, right? I dunno what you think about that facial expression, but it was an interesting one. I noticed can't read into it. I'm not a body language expert, but interesting. When you see those little things pop out of people. So the judge is asking him about that, making sure he is comfortable, not testifying and that he's business's intention and willing to do that. But then he goes through and he's going to read him the set of jury instructions that will be sent back with the jurors. So we're going to talk a lot about jury instructions tomorrow. We're going to save that for tomorrow. Probably not going to have any testimony or any on the record conversations tomorrow. So we're gonna spend time talking about jury instructions, but I want to give you a little preview of one thing that will be in those jury instructions. Judge Cahill is now talking about what the jurors are going to see. The fact that Shovan is not testifying doesn't mean that the prosecutors in their closing arguments can say something like, Hey, Shovan sitting right there, right? We could have heard from him about what his intent was and why he didn't get off of a Floyd's neck, but we didn't hear from him. Therefore, you know, you can take that and add weight to that in whatever manner you think is appropriate. Can't say anything like that. That's totally out of bounds. This is the jury instruction that is even telling the jurors. They can't hold. Shovan not testifying against them. So here's that clip,

Speaker 4: 17:32

Mr. Chauvet, I'm going to address you directly, uh, because the decision whether or not to testify off is entirely yours. In other words, it's a personal right. Mr. Nelson makes a lot of the decisions in trial, but when he can not make for you is whether or not you testify and he can give you advice and you can take that advice or reject that advice. But the decision ultimately has to be yours in that his, uh, is this your decision not to testify? It is your honor. All right. Do you have any questions about your right to remain silent or to testify on your own behalf, but at this time I don't. All right. Does anyone, uh, promised anything or threatened you in any way to keep you from testifying, no promises or threats, your honor, you feel that your decision not to testify as a voluntary one on your behalf. Now, in addition to that, I'm convinced that this is your personal decision, uh, and that you are aware of your rights, but there isn't a jury instruction that may be read to the jury. This again is the one that you get to weigh in on. It's not for your lawyer to make the decision. Again, he can give you advice. And I don't even want to know what that advice is, but you can accept the advice or reject the advice as to whether or not to give this instruction. Uh, if you would like, I can read this instruction to the jury, uh, it's titled defendant's right. Not to testify. The state must convince you by evidence beyond a reasonable doubt that the defendant is guilty of the crime charged. The defendant has no obligation to prove, to prove innocence. The defendant has the right not to testify. This rate is guaranteed by the federal and state constitutions. You should not draw any inference from the fact that the defendant has not testified in this case. Do you understand that instruction? Yes, your honor. Would you like that read to the jury? Yes, your honor. Have you had enough time to talk to Mr. Nelson about whether that's a good idea or that I have your honor. All right. And so I will read that to the jury on your request. Thank you. All right.

Speaker 1: 19:36

Yeah. So obviously you want that in there, right? This is a reminder about the burden of proof that he is innocent at this moment. Doesn't have to say anything about his defense doesn't have, has no obligation to prove his innocence. Government has to prove his guilt beyond that reasonable doubt standard, very high standard. So just kind of making sure the jury is familiar with this concept by placing that paragraph in the jury, instructions is a good move. So that is done. And over with now, let's get into some of the testimony of the day, and I want to start off by showing you why this is even happening in the first place. So here is Jerry, uh, I'm sorry. It's not, it's not Jerry. I think it's Terry Blackwell. Yeah. Mr. Blackwell, let's call him. Mr. Blackwell is the name of the prosecutor and he is starting us off with an overview about why they want to even go down this road. So remember the government has already rested their case right there they're there. They were done. Then the defense came back out, presented their evidence. We had Dr. Fowler yesterday who came out and did a fine job. I think of offering an alternative explanation for the cause of death and mechanism of death and those types of things. And then he introduced this concept of carbon monoxide poisoning. And so, as I mentioned

Speaker 2: 20:48

Previously, this was a back and forth about where this came from. And so I want to show you how it started off. We're going to sort of progress through this because it is an important issue and we almost get close to a mistrial here, uh, just, just really close. And so here is a prosecutor, Blackwell comes back out and he is sort of showing the judge or explaining to the judge why they want to recall one of their witnesses as a rebuttal witness. It's Dr. Tobin, who I mentioned previously. So here is that clip with Blackwell.

Speaker 4: 21:15

Uh, I was told in chambers that there was some newly discovered evidence that the state wish to present and rebuttal regarding carbon monoxide testing. Would you, uh, tell me what that was?

Speaker 5: 21:27

Yes, your honor. Uh, we have blood gas evidence, uh, from, uh, Hennepin County that would have, we contained blood gas readings for the carbon monoxide content. And Mr. Floyd's, uh, blood on 2020.

Speaker 4: 21:48

When was it discovered? How was it discovered? Why was it not disclosed earlier?

Speaker 5: 21:53

It was, uh, discovered yesterday by, uh, Dr. Baker. And what had precipitated your honor was a piece of new evidence. It was a disclosure that came from the stand, uh, during the testimony of Dr. Fowler. Really? I want to show your honor exactly what it was. It was one of the slides.

Speaker 2: 22:13

All right. So now he spends some time kind of digging through the slides here,

Speaker 5: 22:18

Just the camera. And

Speaker 2: 22:20

It was one of the slides yesterday that we saw.

Speaker 5: 22:22

And when I'm referring to a judge is his very last reading here on the bottom, uh, where from the stand and the slide that Mr. Nelson prepared was the statement of the discussion that in seven minutes, Mr. Floyd's boxy hemoglobin could have increased by 10 to 18%. Now that was a new opinion. The word carboxy hemoglobin does not appear in the 31 pages of Dr. Founder's report at all, nor a discussion about the carboxy hemoglobin content in his blood. Now, the word, the concept of carbon monoxide was raised in the report, but not blood gas issues related to it. It was sort of, uh, discussed in the same context, uh, of, uh, sort of taking, uh, drugs, uh, through, uh, the rectum and other things that were raised generally, but not a specific reference to the carboxy hemoglobin content. And Mr. Floyd's, uh, blood, uh, Dr. Baker, um, heard the testimony, um, had not himself ever requested this nor had the ER physicians. They explained that when somebody is brought in and, uh, blood gases are taken, there's a panel of them that are taken. Uh, the ones that, uh, get generated in the records would be the ones that the ER, physicians actually request. Nobody requests the carbon monoxide readings, because they didn't see how that was, uh, relevant Franklin.

Speaker 2: 23:52

All right. So the judge is going to scold them for this pretty badly here. And the, the concept really is a lot of, kind of legalees and techno talk there. But the, the, the, the concept was we have this idea of discovery, right? Both sides have to show their cards. If you're going to have a house party, you want to know who's coming to the party, right? If you, if you bring a friend and the friend says, I want to bring some other people to this party, you say, well, who are those people? Uh, Johnny, Billy and Bobby. All right, well, I know them so they can come same with your other friends, right? But if somebody shows up to the party and they bring somebody that you didn't know about, you're going to have issues with that because there's a mismatch. Both sides need to show their cards. In this case. Sounds like the prosecution is alleging that Eric Nelson and Dr. Fowler submitted a memorandum or a report or analysis. He said it was 31 pages long, went over to the prosecution. They ran through it. They said, Oh, there's nothing we see here that warrants any discussion about blood gas. And it's more, it was more about conversations about low oxygen is fixing a lot of those issues, but nothing specifically about carbon monoxide, hemoglobin, right. That specific word. So it sounds like it was a lot more surface level. And so they come back out and they say, wait a minute. You know, we, uh, we had no idea they were going to go down this rabbit hole here. We do have those results. Those results existed. We didn't disclose them where we learned about it yesterday, after we heard about it on the stand. And so the, the next question is, well, why didn't you disclose those? Then if you had the results, why didn't you give those over to the defense earlier so that the defense could have notified Dr. Fowler and said, Hey, don't put that in your slides. Or here's some more data so that you know, that that's not an issue, right? Because we have the results. We have the blood hemoglobin carbon monoxide analysis. So Dr. Fowler would have not even talked about that if the government that was in possession of the blood, the body and all of their results, all of the analysis, if they had disclosed that to Nelson, then presumably Fowler would have had that and never mentioned it, but they didn't do that. So then Fowler came in and testified, brought up an issue that apparently was in a 31 page memo that they thought they did disclose, but that the prosecution just says, Oh, we didn't know that they were going to talk about that. You're going well, whose fault is that right? They talked about it in their disclosure. So, sorry, you didn't get the memo that there, that their key defense was going to be based around carbon monoxide, hemoglobin, but you could have inquired about that. And you had the evidence in your lab because when, when you heard this testimony yesterday, Dr. Baker, the Hennepin County medical examiner, who conducted the autopsy, called your office, reached out and said, Hey, we do have those results. So we don't need speculation from Dr. Fowler about what level it could have gone up to because Floyd's face was next to the exhaust pipe. We don't need to speculate. We have the results. So he comes back out today and says, Oh, Hey judge. You know what that guy talked about yesterday, we actually do have results. So the judge is going, what, where'd this come from? When did this get tested? Why are you disclosing this the day after he just testified? Cahill Hill asks? When was the test run? When did this actually happen? It digs in a little bit,

Speaker 5: 27:06

Clarify one thing. When was the test actually run? It was run the, uh, the night of, uh, uh, May 25th, uh, when, uh, when Joyce Floyd was brought in and you did subpoena all the records of Hennepin County medical, we did subpoena all the records and what they provided to you did not have that in it. That's right. Your honor. Did Dr. Baker spontaneously call you to tell you that there might be something deep within the computer records that you're not disclosed? Or did you seek him out and ask him for his, we did not seek him out and ask anything guy. He had heard the testimony, um, and, uh, thought that this record might exist. Um, because he thought that while he was aware that there was a panel of the, uh, of the, the tests that are run by the machine. And, uh, and then those that would go to the ER, physicians would be the ones that they request to see the values on. So, and, but we did not contact him. It was the other way around. And we're talking about carboxy hemoglobin readings. Is there also anything as part of that specifically about carbon monoxide concentrations? Yeah. The, the, the carboxy hemoglobin reading, which show the carbon monoxide concentrations, uh, your honor. And, uh, the record watches my hazmat markings on it, but it would return a value for the carbon monoxide content. And it would show whether or not that result is in the normal range or not. And that would be the reading and the readout, um, from, uh, from the test results.

Speaker 2: 28:38

Would've been good to know what have been good to know. They should have sent that over to the defense so that the defense didn't have an expert fill in that gap. Right. The defense would have had that w that, that evidence and said, Oh, look, we do have the carboxy hemoglobin gaseous blood analysis. So I'm not going to consider that to be a potential cause of death. So now that they didn't disclose that they didn't give it to the defense, the defense created a theory about reasonable doubt about something else that could have killed them. They come back around and they say, Oh, no, we did. We, we actually have an answer to that. We just didn't tell you about it. And now we want to, now we want to bring back somebody in to come in and actually correct that. So the judge is going away. What, all right here is Cahill's ruling. Oh, actually, let's, let's go to Nelson first. So Nelson is going to come back out and he's going to explain why this is ridiculous. He's going to tell us that. First of all, we just got this test result, like last night or morning, and

Speaker 1: 29:42

How are we supposed to prepare a defense to this test result? I haven't had an expert witness even come in and look at this. And Dr. Fowler, the person who raised the issue in the first place he's gone, he was here yesterday. They should ask him about it yesterday. They didn't, and he's on a plane now. So if I wanted to bring him back in, can't do it here is Nelson explaining why this rebuttal witness should not be called

Speaker 6: 30:08

The judge? Um, yes. For the record, in terms of, uh, robotic, a couple of things I would like to address versus this new information that was just received. Um, I would, for the record, indicate that I received these test results at seven 53 this morning. Um, my, as I understand it, Dr. Fowler is on an airplane, um, and having some difficulty reaching him at this particular moment might have spoken with other people from the forensics panel. They're looking into these things. Uh, nevertheless, your honor, the point of this is, is that this issue was specifically raised as the court points out, back on February 22nd, some 20, some odd days in the, or 40 some 60 days. I don't even know how long it's been. I'm a little, little, uh, time deprived at this point. The point being is, is that the state has had more than sufficient notice. Dr. Fowler is opining that this could have played a role in his report. He says, and suggests that for completeness, it should have been tested or should be tested the state retained and continues to retain any blood samples. They are not within the control of the defense. The state has had ample opportunity to, uh, rebut any suggestions.

Speaker 1: 31:27

Yeah. So they've had ample opportunity and they didn't do it. They could have addressed it when Fowler was here, he's not here anymore. So now they want to get in front of the jury. It's like, they want the last word on this issue. When they had noticed that they should have been preparing this as a potential defense that they needed to overcome, they didn't do it. Here is Nelson now saying this is highly prejudicial. And I don't disagree with him. I think that this is a prejudicial thing, but you're going to see how the judge sort of fixes this a little bit, but here is Nelson one last clip from him.

Speaker 6: 31:58

Uh, the bottom line is, is that this is information that has been within the state's control. The state has had ample notice that this could have played a part of Dr. Fowler's testimony. It is incredibly prejudicial to the defense at this point. Now, after Dr. Fowler has testified and left the state to, to, um, bring forth evidence again, the jury being the trier of the fact, Dr. Fowler was pretty clear. He was not saying that this was the cause of death. He simply opining that it wasn't considered by the state. And apparently it was considered to be a ridiculous concept by the state of Minnesota, that didn't, they didn't think to test it since this trial has started. In addition to this new infer, this new evidence, the state has had multiple conversations with a city employee about the vehicle itself. They've gone and taken pictures of the vehicle. Again, all of this they've had ample opportunity to do, but this is what they're doing in the middle of trial, even though they've known for a long time that this was an issue I do have, I did receive also last evening, a summary.

Speaker 1: 33:09

Yeah. We're not going to go into the summary, but you know, you're starting to see a little bit of a pattern here, right? You've got the government kind of, they failed to disclose certain things to the defense right here, where we had, we actually had a test result that they didn't get notified about. Even though they asked for all of the documentations, you're going to hear judge Cahill in the next clip, really kind of scold the state about this. Now he's not going to attribute this to bad faith or say that they did that intentionally, but Nelson is bringing up a good point, right? Why didn't they give that to them? Why didn't they disclose it? Because they just thought it was so irrelevant and they didn't even consider it. And here Nelson brings in another expert witness who says, yeah, it's actually a pretty reasonable thing to consider given the situation that existed on May 25th of 2020. So Nelson now is, is, you know, kind of screaming about this stuff. Rightfully so because the government wants to fix this. They want to bring a rebuttal witness to come and clean this up. So let's see what judge Cahill ruled, how he ruled. And he gives a little, he kind of, kind of, uh, gives it to the government. I think it's in this clip. Let's see.

Speaker 4: 34:10

All right. First of all, in dealing with the, these lab test results, um, I find that the Dr. Follows report gave sufficient notice to the state that carbon monoxide, the carbon monoxide that pur potentially was in George Floyd's blood, uh, could have affected cause of death. Uh, I read page 15 of his report, which I don't have at my fingertips at this point, but basically they said Dr. Follower came right out and said it should be tested, uh, that gave the state notice sufficient time in February to either test the samples that are still there, or to dig a little deeper. Uh, it's just by, uh, serendipity that Dr. Baker calls the state and says, Oh, by the way, it does exist. It should be in there. It seems to me very odd. I'm not claiming any bad faith on the state's part, but it seems odd that Hennepin County medical center, when they're asked to turn over all their records, that they don't include records that are maybe are just buried a little deeper. It is on there. A response to the subpoena was probably insufficient in and of itself, and they should check their standard operating procedures so that in the event, this happens again, that they will supply all the information they have. But in any case, uh, the defense gave notice that this was going to be an issue. And specifically talked about testing the sample. The state had sufficient time to investigate and disclose too, even if it's just because Dr. Baker called the state and said, we can actually find this at eight o'clock this morning, uh, when the state is, or the defense expert is done, testifying has left the state. Yep. Uh, it's untimely, uh, to give the notice and it prejudice to the defense by the late disclosure, even if it's not due to bad faith, but the late disclosure has prejudiced the defense. It's not going to be allowed. So Dr. Tobin will not be allowed to testify as to those lab results. If there's anything he wished to add about carbon monoxide, as far as environmental factors, but he, if he even hints that there are test results that jury has not heard about, it's going to be a mistrial pure and simple. This late disclosure is, uh, not the way we should be operating here. Nope. In that case, Dr. Tobin may testify as to carbon monoxide, if he sticks to the environmental factors and as a pulmonologist, looking at the videos, for example, and seeing Mr. Floyd's location and, uh, not knowing whether the vehicle is even on or not, which the state brought out in cross examination, all those factors you can talk about environmentally and what the likelihood is that it would affect his carbon monoxide, uh, concentration in Mr. Floyd's blood. That's fine, but nothing about these lab tests results that were just disclosed 8:00 AM this morning after the defense expert, uh, is done with regard to

Speaker 1: 37:27

All right. So you heard that right? Unequivocal. If he even mentions one word about that car boxy hemoglobin test boy is going to be a mistrial so fast in here, boy, and make your head spin. Don't try it. So when he goes through this, it is pretty clear that there's a, there's a distinguishing factor here. If you are going to be talking about the actual test results, that's no go, but environmental stuff, no problem at all. You can talk about all that you can say. Yeah. You know, the, when the car was on car was off and because this guy, Dr. Tobin is a pulmonologist, then he can come out there and opine on those factors. It can say, well, you know, because of everything that I'm seeing, this is my conclusion. And so we get into Dr. Tobin now coming out and testifying and it gets really close. So remember what we're looking for, remember what Eric Nelson is doing over at the defense table. He is waiting for the word test or oxygen something, right? He's he's just on a, on a hair trigger, waiting for something like a test result to come in. Some sort of analysis of George Floyd, something going to object through the ceiling and screaming for a mistrial because the judge just warn them. If we get even close, going to be a mistrial. So watch what happens in this next slide. As Dr. Tobin is testifying in court.

Speaker 5: 38:45

Do you have an opinion to a reasonable degree of medical? One more time? Do you have an opinion to a reasonable degree of medical certainty as to whether this statement that Mr. Floyd's cut boxy hemoglobin could have increased by 10 to 18% is reliable?

Speaker 7: 39:00

No, I believe it is not reliable.

Speaker 5: 39:03

Would you tell the ladies and gentlemen why that statement is not reliable?

Speaker 7: 39:06

I base it on the arterial blood gas that was obtained where Mr. Floyd was in Hennepin County.

Speaker 5: 39:17

Oh,

Speaker 1: 39:20

The hemoglobin blood gas that was obtained when he was at Hennepin County, what the blood gas. So they go into a sidebar, right. And objection, getting really close. Now you can see here, you can't really see what they're talking about. They got masks on, so you can't see what the arguments are, but, uh, I'm going to be guessing that Eric Nelson is saying, Hey, yo, right now he just talked about the, the blood gas that just came out of Floyd's body when they were over at Hennepin County. And he's this, that's it. Right? That's it. He's not allowed to talk about those tests cannot talk. If you just heard the judge, it's going to be a mistrial. If he talks about the tests. So then what, what, why wasn't it a mistrial? What, what happened here? Because we're going to see that we have, Mr. Blackwell comes right back out. They go into a sidebar for a long time, a lot longer than a typical sidebar. And then Mr. Blackwell comes back out and continues his line of questioning. And so let's see what happens.

Speaker 5: 40:13

I think the objection should be sustained, but, uh, just rephrase the, thank you, your honor, uh, Dr. Tobin, as you prepare to tell us why this results, uh, in your opinion, are not reliable. Uh, could you please to help the jury to understand something about, uh, oxygen saturation testing in the bond?

Speaker 7: 40:39

Right. So if you have like, was done in Mr. Floyd, when he went to Hanaman County, uh, he had an arterial blood gas, 10, so that's sticking a needle into the artery at the wrist, and you take out the blood. And then on the, uh, blood gas measurements, you measure a number of different items on that. Like the pressure of oxygen in the blood, that pressure of carbon dioxide, the amount of acid in the blood called the pH, and you get all these different measurements and you also get the oxygen saturation. And that is the, how much of the hemoglobin, the protein in the blood that carries the oxygen. How much of that hemoglobin is saturated with oxygen. And we know in Mr. Floyd that it was 8% saturated. Okay. So 98% saturated with oxygen with oxygen when they measured it in Hennepin County. So that was nine 16, uh, the timeframe.

Speaker 2: 41:47

So I'm not real sure how useful that is, but you can see where he's going with this, right? So he's, he's not talking about the carboxy hemoglobin analysis. He's not talking about that test. Now, Nelson saw him start going down the road of talking about blood tests and blood analysis and oxygen and all that stuff. So he objected both the doctor talked about the only thing he mentioned there was about the tests that were run and were disclosed. And those were the oxygen saturation levels. Like we already had that data that had already been disclosed. We already knew those tests were run. And that was the air. Eric Nelson had been properly prepared to address that stuff. So during the sidebar, what I'm guessing happened, Eric Nelson objected said, Hey, they're going to talk about all this blood gas stuff. Prosecutor Blackwell goes over and says, yeah, but we're, we, we, we are going to talk about blood gas. That's, that's correct. But it's about tests that we have already done. It's about stuff that has already been disclosed. We know that last night, we just disclosed this carboxy hemoglobin analysis to you. We're not going to talk about that test. We're going to talk about the other oxygen saturation tests that we can deduce and extrapolate conclusions from. So he's going to say he comes back in and says, no, it could not have been carbon monoxide monoxide because we did an O two saturation analysis saw that it was 98%. But again, we heard yesterday from a Fowler, I think himself who said that it's easy to confuse the two on the accelerometers or oxygen, whatever those things are. You put on your finger that analyzed your O two sat levels. So it's something that is they, they brought them in, but I'm not sure how effective it was. It probably would have been more effective if he would have been able to talk about the carboxy levels, but was not able to do that. So that was the end of testimony. Now, the judge did send them home and he's basically said, come back on Monday, we're going to have closing arguments. Then you are going to be sequestered, pack a bag because it could be a long time. It could be five hours, could be five weeks. It's up to you, jurors. You guys are going to be the ones to decide. And so they're going to spend all day tomorrow, probably the rest of the afternoon, talking about jury instructions. And I mentioned this earlier in the week that legal insurrection did a great job. I think on day 12 of the Shovan trial, if you want to go to their website, pulling all of the jury instructions, all of the Minnesota jury instructions, as well as the government and the defense, uh, proposals for the modification of those instructions. And so we'll go through some of those tomorrow so that we can flush out what those are going to look like. Cause the judge will probably have a ruling on those, uh, on Monday, I would guess they're going to sort it out today and tomorrow, judge, we'll make some final decisions. We'll have closing arguments on Monday. We'll submit everything to the jury, then there'll be set for deliberations. All right. So

Speaker 1: 44:32

Let's take a look at some questions. First one comes over from Patto. He says, Hey, Robert, are you going to give us an opinion on what you think the verdict will be and should be on all counts? I will happily do that after closing arguments because we have not seen it yet. And I want to see what Nelson does with that. Cause I still think that there is a lot to be won on that. All right. So I will, I will give you my opinion on it. Uh, on, probably on Monday after closing arguments, David Mo weer says, would there have been a mistrial if Nelson delayed his objection by seconds? So I'm not sure. I don't think so. I think that Blackwell and Dr. Tobin knew where they were going. They knew that they were going to go down that route and talk about levels that had been disclosed. I think that if Nelson had not objected, they probably would have just continued down that line of questioning. And he would have, you know, he's, he's not a dumb expert witness. They had a conversation before he took the stand. You are not allowed to say anything about that. And so he knew that. And so it was just probably a little bit of a, you know, Nelson was just waiting for it, thinking this is going to be an easy mistake and probably Blackwell knew that. Right. And probably was kind of baiting him a little bit and just saying, all right, we are going to talk about tests, watch this. I'm going to get an objection on this answer. And then I'm gonna overcome that objection by explaining we're talking about a different test. One that is allowed in evidence next up we've got Ian Fromm says, I'm curious to hear your thoughts with the defense presentation. I feel they might've been more effective by just resting as from what I have seen their witnesses. Weren't really that effective. Yeah. I agree with you on that. Actually. I think that they, they were, they were all right. Uh, uh, Dr. Fowler was probably the most competent one that I saw, uh, not really super impressed with Dr. Brode. I thought that the government witnesses were significantly better. Uh, so I think there's, there's, there's, there's some value to that, right? It's the idea that you, you, you don't overdo it. You have a case that you've got enough evidence that has been presented and you don't double down. You know, sometimes people think that they have to have the last word and they have to just keep talking and talking and talking and presenting and presenting and presenting. And sometimes that can just do more harm than good. You have a jury that checks out, you have jurors, you think you're trying too hard, they've heard enough. And they start to punish you because they are just kind of agitated by the fact that you're trying to create all of this out there stuff to throw sort of like, you know, like a shotgun approach where you're throwing everything at the wall to see what sticks and that doesn't feel. Right. So, so if you can just kind of change the narrative a little bit and say this look, it's not causation. And it has, it was not excessive force. The government's own expert witnesses disagree with themselves about this. And we have shown that in trial, in my mind, that's reasonable doubt. And that would be the closing argument. So, you know, rather than just keep keeping on, uh, stacking witness after witness, you just close it and you, you know, when to quit. In other words, we got Viva fray in the house. What's up Viva Viva says, uh, I don't have experience with this, but is it normal for the judge to talk this much to an accused refusing to testify. This is a lot of back and forth and allows people to read into his behavior. Yeah, it is. I think that the judge good to see you. You have a first of all, and thanks for joining in, on our live chat. We got, we got Viva in the house folks. So be on your best behavior, but Veeva it's it's, it is pretty common. You know, the judge was very clear about this. So in the United States, when we go through, let's say, for example, the change of plea proceeding, if somebody were to be pleading guilty, we go through a very long soliloquy, right? The judge is very clear, uh, with the defendant specifically, and they don't have to say much other than yeses and nos. Yes. I understand. No, I'm not under the influence of all this stuff, but it's a very long sort of scripted procedure just to make sure they know what they're doing. That they're giving up their rights. They, they know that they can appeal and that nobody forced them. They're not under duress. So it went in, you know, big decisions like this in big cases, you will have a back and forth with the judge. And sometimes as a defense attorney, it feels like, Hey, you know, Hey, like maybe I should be doing something here, but you can't right. It's it's the judge wants to make sure that there's a, there, there are certain decisions that are within the purview of the defendant alone. So, you know, we, we, we sort of say that in, in, in, in the criminal defense world that we have the ability to make some of the procedural decisions, but we ultimately have to leave certain questions up to the client. And two of them are one whether to plead guilty or not, or are basically set your case to trial. And the other is, is whether or not to testify. And so those are like sort of sacred concepts that a defendant has. And so the judge wants to make sure that if they're going to be giving up those rights or making decisions around those rights, that it is done very clearly. And so judge Cahill was, was very explicit today. Sometimes, you know, in my experience on lower level misdemeanor courts, things like that will take, you know, a quarter of the time. But because of, I think the stakes of this case, the judge was just very, very clear on it and good to see you Veeva, thanks for being here. And by the way, folks, Veeva and barns they're on locals.com, which they have, uh, Viva Barnes, law.locals.com I think is the address. Or just go look up Viva barns. So when you're on locals asking these questions, go check out their community as well. There are a lot of great creators and we want to support each other. And of course, subscribe to them on YouTube. If you missed it, we did an interview. We had our own sidebar, Viva barns, and Robert Guler had our own sidebar about, I think two or three weeks ago. It was a lot of fun. And so we're, we're happy to have them poking around the show. Next up we've got norovirus says, wouldn't it make it a Brady violation that they did not disclose this to the defense. So not necessarily a Brady violation. I mean, it's a, it's a, it's definitely a disclosure problem. Um, Brady is sort of, you know, things that are exculpatory. So Brady's, uh, it's an exploratory evidence kind of standard. If a cop does something that's negligent or misconduct or is a integrity violation. Yeah. Those are all going to be on the disclosure statements. We have to be notified that, uh, about those things, if we are the defense, so them not disclosing it, it's

Speaker 2: 50:28

Not good practice.

Speaker 1: 50:28

Right. And the judge kind of scolded them, but it sounds like it was a good faith mistake that they tried to, they tried to fix. Now, if they would have said that, you know, one of their investigators, they didn't disclose it. They fabricated evidence or something. Yeah. That would be a catastrophic problem. Now they come up with this car carboxy hemoglobin stuff. Even I'm confused as to what they are doing here. Blood gas is, is by definition includes hypoxia. Now this is entirely unfair because defense went over the entire car, bought carbon monoxide analysis and prejudice the jury against Dr. Fowler. Yeah. Yeah. I mean, right. They, the state did get another bite at that Apple, in other words, Fowler made his, his position. Tobin got to come in knowing what he said and rebut that. So I can understand that we got Todd trot in the house as do you think, with all the members on the prosecution team that they would have made the gas blood analysis available. Excuse me. Yeah. So I, I do. I think that they should have, and the judge agrees with that, right? They should have disclosed everything for some reason. They didn't do that. And I think that is a big problem. You know, this is a, this is, this is part of the problem of being a defense lawyer. You know, you can only operate based on what the government gives you. The government holds all the cards, they have the file, they have the body, they have the blood, they have all of the physical specimens. They have all of the experts, it's all in their lab, within their purview. The defense has nothing. So we just basically have to act in good faith on the reliance that they're going to give stuff to us appropriately when they don't, these types of problems happen. And then oftentimes you'll see the judge kind of allow them to fix it, right. So I'm not, I'm not, you know, I'm trying not to be,

Speaker 2: 52:05

Be too, uh,

Speaker 1: 52:07

Let's say decision oriented here, but you know, Cahill, I think Cahill could have, could have justified not allowing him to test.

Speaker 2: 52:15

If I at all just said, Nope, you know, you, you guys lost that opportunity. You, you, you had the challenge,

Speaker 1: 52:20

You were properly notified on page 15 of Dr. Fowler's report. You didn't ask any questions about it's too late. Now, Dr. Fowler is on a plane. You don't get to bring it up. And so you kind of split it down the middle. Is that all right? Well, he can come in and testify about some

Speaker 2: 52:32

Things, but not all of the things,

Speaker 1: 52:34

Not everything that you want, which is, you know, what judges do. I don't like it. I'm a defense lawyer. I say, Hey, if the, if the prosecution doesn't give us something, they should be

Speaker 2: 52:45

because it's their responsibility to do it. So maybe

Speaker 1: 52:48

On that one, I disagree with Cahill a little bit. We have Liberty or death says, I did not like Blackwell's explanation of how the test came about. He just looked shady. I'm thinking Shovan gets acquitted. Or the jury convicts solely because of the fear of rises,

Speaker 2: 53:01

The riots of, or of reprisal. I understand the

Speaker 1: 53:04

Scientific parts and how they tried to show. You can scream when you cannot breathe. And the explanation that the lack of bruises on the muscle did not mean he wasn't choked. Yes.

Speaker 2: 53:12

So there's a, there's an opinion for Liberty. And, you know, there's, there's some hint

Speaker 1: 53:19

That that is actually a thing right now. Right? We, we

Speaker 2: 53:21

Saw that a city council person from Minnesota yesterday

Speaker 1: 53:26

Specifically said they fired the city manager out at, uh, the, the center Brooklyn center in Minnesota, because he said that they needed to exercise due process for the people who were a part of the, uh, uh, Dante right shooting. And she said specifically, the reason for the firing she's feared, she's afraid of reprisal. She's afraid that they're going to come torch her house and murder her family. So she made a very, very important decision. She fired a man who was with their office for, I don't know, 15 years. I think it was because of that. God, you're gone. Sorry. I'm scared for my safety and wellbeing. You're outta here. So do you think that the jury members are going to have any qualms about throwing Derek Shovan to the mob? Of course not. They'll get accolades. They'll get praised all day long, but if they quit, it's a very, very different version of a future for them. Isn't it news. Now Wyoming says I'm not sold on second degree, the murder. I still haven't seen anything about intentionally causing felony assault. So the intentional part, I think there would just be inferred, right? The fact that he kept the knee on the neck for nine minutes is enough intense. He didn't move it. He didn't remove it. If the jury decides to he caused the death, I can see the third degree in the manslaughter because accents were, were wanting diff disregard. All right. Yeah. So it's, it has, it's a good question. I think we're gonna, we're, we're, we're gonna know a lot more after closing arguments, which is why I'm going to hang on. No, everybody wants to sort of game-ify this thing. And, uh, and, and, and, you know, I've got my opinions on it, but it's just too early. It's not ripe enough, but it'll be juicy on Monday afternoon. We'll have some opinions to share. Then we have woodworking medic who says, I've worked at a level one trauma center in the ER, I've never seen a blood gas that shows carbon monoxide levels. At least where I worked, that was an entirely separate lab that we had to draw and send to have tested. I would be really curious to see the paper labs that the prosecution is talking about interest. Yeah, it's interesting. Right. And it pops up last minute. Soon as it comes out in court. Oh wait. You know, shucks, the darndest thing, we actually have that report. It's right there in the thing. Let me grab it for you. Gosh. So silly. We have Sharon Quinn. He says, isn't all the information in these documents. Fair game. As far as testimony is concerned, unless the judge disallows something. So it's not that inclusive by any stretch, right. We're talking about very, very, very strict rules about what can be said, how it can be said and all these different things. We have very extensive rules of evidence that is sort of like navigating a minefield a little bit. And so, especially when it comes to expert witnesses, Sharon, I'm not, I'm not sure that I would characterize it as fair game, but if you do properly disclose it to the other side, then it is more fair game. And so that's what Eric Nelson was arguing. We told them we were going to talk about this. It was on page 15, heard the judge read it into the record.

Speaker 2: 56:24

I'm looking at it right here. This is what it says. And so I think that's sufficient disclosure for the state that the defense can talk about that stuff because they notified you about it. That seemed fair to me.

Speaker 1: 56:34

And the government said, well, we didn't, we didn't necessarily understand.

Speaker 2: 56:37

Apparently they're 15 lawyers can figure out that's where they were going. We have justice first says generally, should a police officer be held responsible for the death of an individual simply because the stress of the police interaction, tip them over the edge. Dr. Baker's words. I mean, is it reasonable to expect police to assess the hidden health fragility

Speaker 1: 56:57

Of each person prior to each confrontation? Uh, no, I don't think so at all. Right. I mean, I think that would be an impossible.

Speaker 2: 57:04

They can't possibly do that. Right. How can a cup, how could Derek Shovan have known about George Floyd's heart disease and fentanyl toxicity and prior methamphetamine use and his 2019 altercation with police that put him in the hospital because of last minute ingestion and it's impossible. Right? So you've got to assess the scene based on the facts that you see when you're there. And that is really what the objective reasonable standard is all about. It's about saying, Hey, there are certain things that we can analyze that, that any objective reason objectively reasonable officer would have done at that moment in time. And it sounds like that's an easy standard, but it's not, as we've heard, we have different agreements between different experts about what is in fact reasonable and what isn't next up we've got Liberty or death. Would you have, let the doctor talk about tests to get the mistrial? Would you have let the doctor talk about tests to get the mistrial? Um, well I think we're, I think we're sort of out of order on that Liberty. So if Eric Nelson would not have objected to the rebuttal testimony and, and allow and agreed to allow that to come in, then if they talked about the test, then it would not have been a mistrial. So the state moved first that they wanted to admit this stuff, Nelson objected, the judge said we're going to let some of it in on the condition that the test stays out. So that was sort of an agreement that was settled. So I'm not sure how Eric Nelson could have allowed the doctor to talk about the test under those circumstances. If he, because if he would've just not objected, then the judge would have let it all come in anyways. And he could have talked about the test then Eric Nelson, I guess, I guess theoretically could have objected and said, that's not an evidence. The judge probably would have said, well, why don't you object before we started? Right. So I think what Eric Nelson did was, was appropriate. And I'm not sure, I'm not sure if there's any other way that Eric Nelson could have engineered sort of a mistrial just based on the sequence of events we have mock Maki JV

Speaker 1: 59:06

Says is a mistrial from a procedural mishap

Speaker 2: 59:08

Result in a different end than a hung a jury.

Speaker 1: 59:12

Yeah. So I was reading through some

Speaker 2: 59:15

Of the rules on out of Minnesota about this, and I really didn't get a clear distinguishment on how their, uh, local rules work or how they work things in Minnesota. But yes, there are, there are certain types of mistrials that can be corrected. And then there are those that can not be corrected. And so it sort of depends, you know, I need more facts, uh, in order to determine, you know, which way it would go. But yes, there are, there are differences between mistrials. It sort of depends on the underlying reason. And our last question of the segment comes in from Bianca Realty. It says during the testimony yesterday, the prosecution made an objection and the judge said he didn't sustain it because they would have a rebuttal opportunity. I think the judge felt a little guilty today when the prosecution reminded him of that said we tried to object yesterday. So here's some undisclosed stuff we want to add today. Such serendipity. Yeah. Interesting Bianca interesting observation. So I did not catch that, but yes, you're sort of identifying a little bit of a quid pro quo going on, right? Like sort of, uh, massaging around the edges. Well, you know, you, you, you, you gave me some leeway on this, so I expect some leeway on that. Or, you know, you, you, you didn't give me leeway on this. So you got to give me some over here and I think you're right. A lot of that stuff happens in court and in trial. I didn't, I didn't pick up on that, but if your character, that, that sounds like a very fair characterization of stuff that really does happen. And that may be why judge Cahill let it in. I also don't think it was really consequential either. You know, like this wasn't a maker make or brace rebuttal testimony. I don't think the jurors are going to go back there and go, Oh, carbon monoxide. That's it mean there's, there's way more compelling evidence in this, in this entire trial specifically about heart disease and drug use that are, I think, a bigger causal factor than carbon monoxide. So very good questions. All of those came over from our locals community. So if you're not up and over there yet, what are you doing? Hello? Get over there. It's watching the watchers.locals.com. We have a great community over there of like-minded people who love to talk about these issues, stay plugged in, share links. And so we'd invite you to go check that out and get a copy of all of our slides free copy of my book, all that stuff@watchingthewatchersdotlocals.com. All right. So let's change gears a little bit. We're talking about Ashley Babbitt today. And if you recall, Ashley Babbitt was a woman who shot and killed by a police officer on January six, back during the Capitol Hill protest or riots or insurrection or sedition or whatever you want to characterize it as. And we learned yesterday that the officer who did shoot her is actually not going to be facing charges. And so a lot of people are asking themselves questions, questions about this. That's weird. We're seeing cops all over the country, get charged with crimes, or at least investigated and, and, uh, indicted or going through a more formal process where we're at least asking a grand jury about an indictment. So the example I'm thinking of is a Brianna Taylor case and Brianna Taylor, right? An officer shot a bunch of bullets through an apartment building ended up killing Brianna Taylor shot from the outside wantonly recklessly, like a maniac she's dead. They go through a grand jury indictment proceeding grand jury decides not to indict. Well, at least we got a little bit of something there, right? We got an investigation and a, an attempt to indict. Now, if you look into that indictment process, the whole thing was a sham. We know that Daniel Cameron over there was a sort of manipulating the whole thing and one man's humble opinion. But the point here is that this officer doesn't sound like is even going to go through the indictment proceeding. This article comes over from the New York post. We're talking about Ashley Babbitt. She was killed on January 6th in the U S Capitol police officer who shot her, will not face charges. And investigation of the shooting was closed by the department on just of justice. On Wednesday in a news release. DOJ said the unidentified officer who is still unidentified. We know who we know who the other officers are. Right? We know who Derek Shovan was right away. We knew we know who Kim Potter is knew about her right away. This officer is still have no idea who that is. They shot Babbitt with a single shot near the speaker's lobby inside the Capitol. And they're saying that the officer did so in self-defense and to protect members of Congress. Investigators also determined Babbitt's civil rights were not violated in the shooting. According to the statement, we go over to NBC news. They say that no charges were recommended for the officer who shot Ashley Babbitt. Capitol police said that an investigator's quote used clear, appropriate use of force. It's not even a close call. So the office, his lawyer, Mark E Shamil. And so people are asking themselves questions about that, right? The department of justice announced last month that Metro PD of DC would investigate the shooting. The officer was placed on leave. This is routine standard procedure. Whenever an officer deploys Liesl forth lethal force says the us attorney's office and the justice department person spokesperson. So we have the press release. And then we're going to go through and take a look at a, an analysis by a guy named, uh, I think it's a guy by somebody named technophobe and they, they have a nice sub stack little community, and they also have a nice Twitter following. And they're also on telegram. So go take a look at techno fog, not frog fog, and we're going to go through his analysis because he does a nice job sort of countering this narrative and want to give that a little bit of a boost. So let's take a look at the DOJ press release. You're going to see that here. This was released Wednesday, April 14th. It says the department of justice closes the investigation into the death of Ashley Babbitt, us attorney's office for DC and civil rights division of the DOJ will not pursue criminal charges against the officer involved in the fatal shooting of 35 year old. Ashley Barrett, us attorneys and others. Metro PD, internal affairs conducted an investigation. They examined video footage posted on social media statements from the officer involved and other officers and witnesses to the events. They got physical evidence from the scene and they conducted an autopsy based on the investigation. They determined there is insufficient evidence to support a criminal prosecution officials from the ID informed a representative of miss Babbitt's family today, uh, of this determination. So quick reminder on Ashley Babbitt, if you recall, this was the woman they were sort of making their way up. The stairwell of the Capitol building, the doors were closed. They were barricaded in, there was one window that looked like it was sort of, uh, punched out. And there was a lot of activity in that stairwell, a lot of activity. And so Ashley Babbitt sort of, if I'm remembering this correctly, it sort of steps up into the window. So it's sort of a door that has wood on the bottom and a window at the top, the top of the door, the window is blown out. And so she was sort of stepping up into the frame of the window to cross through the door, across, through the barricade and get into, I think it might've been the, the, the, the chamber. So there was an officer on the other side of that barricade. If you watch the videos, tons of videos about this, as soon as she kind of steps up before, she's really through the barrier, you can tell she's going through the burial, uh, barrier, but before you do boom, and officer kind of just pops out fires a quick shot, she falls back through the barrier falls back on the, on the non breached side, and then is sort of bleeding out there as people are surrounding her. Uh, there were other officers in the stairwell. Also, there were, I think there was like a SWAT team that was in the stairwell. That was a rendering aid to her right then and there. So a lot of questions about this, you know, was it excessive force? Was Ashley Babbitt a threat to the officer on the other side? Why is she a threat to the people inside the Capitol building was this excessive force was this access of force because there were other law enforcement agents on the other side of the door, like in the videos, you can see them, they're there almost instantly. So were they communicating with one another? Did they need to shoot her? Could one of those other officers have done something was this whole situation about to be disposed of, you know, a lot of, a lot of questions about it, but this officer apparently is not going to be charged according to the DOJ. And a lot of people maybe think that is not such a good thing. Investigation did determine on January six, that Ms. Babbitt joined a crowd of people that gathered at the U S Capitol grounds to protest the results of the 2020 election inside the building. Congress convened to count the votes members of the crowd outside the building eventually made their way inside joint session stopped investigation, determined that Babbitt was among a mob of people that entered the Capitol building and gained access to a hospital, a hallway outside the speaker's lobby. This leads to the chamber at the time Capitol police was evacuating people. Officers used furniture to barricade a set of glass doors, separating the hallway and the speaker's lobby to try and stop the mob from entering the speaker's lobby. And the chamber three officers positioned themselves between the door and the mob members of the mob attempted to break through the doors by striking them and breaking the glass with their hands, flagpoles helmets, and other objects. Eventually three officers position outside the doors were forced to evacuate members of the mob continued to strike the glass doors. Ms. Babbitt attempted to climb through one of the doors where the glass was broken out. Officer inside the lobby fired one round from his service pistol striking Babbitt in the left shoulder, causing her to fall back from the doorway and onto the floor, us Capitol police emergency response team, which had begun making its way into the hallway to try to subdue the mob administered aid to Babbitt. So it was a us Capitol police officer who shot somebody, right as an emergency response team was right there. Why didn't they just let the response team just get there? Who, because they're on the same police force where they talking to one another who was transported to the hospital, she succumbed to her injury. She died at the hospital. Excuse me. The focus of the criminal investigation was determined, was to determined whether federal prosecutors could prove that the officer violated any federal laws concentrating on us code two 42 under the federal criminal civil rights statute. So they're going to do their analysis on why she's not being charged in order to establish a violation of the statute. Prosecutors must prove beyond a reasonable doubt that the officer acted willfully to deprive Ms. Babbitt of a right protected by the constitution or other law.

Speaker 8: 1:09:20

Like I don't want to live

Speaker 2: 1:09:22

Here the fourth amendment, right? Not to be subjected to an unreasonable seizure. Prosecutors would have to prove not only that the officer used force that was constitutionally unreasonable, but that the officer did so willfully, which the Supreme court has interpreted to me and the officer acted with a bad purpose to disregard the law. As a requirement. This has been interpreted by courts evidence that an officer acted out of fear of mistake, panic, misperception, negligence, or even poor judgment can not establish the high level intent required. The investigation revealed no evidence to establish beyond a reasonable doubt that the officer violated law, the investigation revealed no evidence to establish that at the time the officer fired a single shot that he did not reasonably believe it was necessary to do so in self-defense or in defense of the members of Congress, acknowledging the tragic loss of life, offering condolences to the family. We have closed the investor

Speaker 8: 1:10:13

[inaudible] into this matter. So you see what their analysis looks like, right? Willfully deprivation, we've got bad purpose and disregarding the law. So let's take a look.

Speaker 2: 1:10:24

Now I believe techno fog is another lawyer. Um, he, he sort of acts in, uh, anonymity, so I'm not positive on it, but I'm pretty sure he is. So let's take a quick look at his analysis because he sort of is saying that the DOJ is full of garbage. Don't have to take my word for it. Let's go to techno fog. We have, the DOJ is lying about the Ashley Babbitt case. The force was excessive. So the GOJ punts to willfulness today. And this is over at techno fog dot[inaudible] dot com. So go check this out. Uh, this was, this was public, not behind a paywall, so I I'm not, uh, I'm not chipping his content. So go check him out, give him some, some support. If you want to get more of his stuff today, the us attorney's office for DC issued a press release, explaining their decision, not to prosecute the officer who shot and killed an unarmed protestor named Ashley Babbitt, DOJ officials, along with Metro PD, they say this was a thorough investigation, included, reviewing all the footage and all that stuff. They explained members of the mob continued to strike the glass doors. You'll notice there's no mention. Techno says of a verbal warning to miss Babbitt or other efforts to subdue her without the use of deadly force. And you can see that right in this sentence, right? They continued to strike the glass doors. She attempted to climb through the doors where the glass was broken out. So

Speaker 8: 1:11:37

Daughter didn't do anything else for, I didn't attempt to push her back

Speaker 2: 1:11:42

Or tase her or pepper spray her or do anything just, and we saw the video, right? Just kind of pop,

Speaker 8: 1:11:48

Pop. She falls the, the,

Speaker 2: 1:11:50

The crowd on the other side of the door, they go, gosh, somebody just got shot. There's a shooter here. And so everything sort of spilled into pandemonium, then techno continues. He says, continuing on the DOJ maintains that the focus of the criminal investigation was to determine whether federal prosecutors could prove that they violated any laws. And they're talking on the they're focusing on the term willfully prosecutors would have to prove not only that the officer used force that was constitutionally unreasonable, but they did so willfully. Then he goes through and says, they concluded it revealed no evidence, no evidence beyond a reasonable doubt that there was a willful violation of the law officer. It cannot be proved that he did not reasonably believe that he needed to do this in self-defense. So techno says that the conclusion should be no surprise, not because of the law or the facts, but because of the people in charge of the department of justice, U S Capitol police, like the park police have always had a special relationship with the DOJ. One that includes preferential treatment. This case is no different for starters, why there are three basic elements to a prosecution under the U S code

Speaker 8: 1:12:56

One, the defendant

Speaker 2: 1:12:59

Was acting under the color of law. Willfully deprived, a victim of a federally protected

Speaker 8: 1:13:03

Rights. So what do we need

Speaker 2: 1:13:05

To do there? And we're talking a lot about Shovan and all of these other cases can Potter and Dante, right and on and on excessive force is easy to establish. The Supreme court has held that the government must introduce evidence that the action of the officer in shooting to kill Babbitt was excessive in relation to a legitimate government objective, right? So what is a legitimate government objective? He says, this is an objective standard. The force must be objective unreasonable. When viewed from the standpoint of a reasonable officer at the scene, Babbitt was unarmed.

Speaker 8: 1:13:37

She was climbing through a window, not attacking anyone.

Speaker 2: 1:13:39

She shot and killed. This is easily accessive right now, the corollary there, the response to that is that she was in the Capitol building. You know, these were senators, these were house of representative members. These were people who are elected leaders of Congress. And so, you know, people say that if you sort of are measuring the severity of the crime relative to the use of force. And so if you've got a lot of people sort of storming the Capitol building with threats of killing people inside the building, that's a big deal. But the converse of that is as well. Wasn't wasn't everybody gone already. By the time they got there, didn't they everybody. So

Speaker 1: 1:14:12

Is the idea

Speaker 8: 1:14:13

That he was

Speaker 1: 1:14:14

Protecting congresspeople. Is that legitimate? If there's nobody

Speaker 8: 1:14:17

In the building next

Speaker 1: 1:14:19

Up we've got willfulness. We have serious doubts about the DOJ position, that there was

Speaker 8: 1:14:23

No evidence to establish

Speaker 1: 1:14:25

A violation of the law. As an initial matter, the DOJ press release neglect to mention whether the officer used excessive force.

Speaker 8: 1:14:32

Instead they go right to

Speaker 1: 1:14:34

Willfulness. They don't even talk about excessive force. We believe this reveals their intent to soften the blow of the press release as to willfulness 18. Us code says that when the defendant understands that he is unjustifiably invading a legally protected interest or acts in reckless disregard of the

Speaker 8: 1:14:50

Then wilfulness applies, the defendant does.

Speaker 1: 1:14:53

I have to think in constitutional terms, the DOJ exaggerates, he says at worst, it lies about the willfulness burden. We doubt the DOJ could prove willfulness in this case,

Speaker 8: 1:15:03

Couldn't even prove it couldn't

Speaker 1: 1:15:05

Prove willfulness. He thinks they could prove it. In fact, the DOJ brought section two 42 prosecutions with less egregious facts as the DOJ has argued. In other cases, the officer's prior training on the use of force could be viewed as evidence that his conduct was willful. Are we to think that the officer didn't have training on when force became excessive? In another case, the DOJ argued for circuit court of appeals that do establish willfulness. The jury was required to find the defendant intended to use more than was reasonable under the circumstances. For example, force it violated the victim's well-established due rights as a pre-trial detainee. What makes this Ashley Babbitt case different the victim and the location. He says this case should have gone to the jury at this killing took place in Minnesota

Speaker 8: 1:15:45

Or Chicago, the results would have been different. Yeah. Why wouldn't it be

Speaker 1: 1:15:53

A double standard across the board? We've seen this ad nauseum with the Capitol Hill cases. They should've gotten bail were denied that looking like I'm actually, it, things might be looking up a little bit. Now we expect that people have a right to a speedy trial and due process and things of that nature. The government started by coming out and saying, we can't handle these extra 300 cases. So we need very long continuances. We're going to just continue everything out. A bunch of these defense attorneys just sort of rolled over is sure continuance. We don't have to deal with this stuff for another 60 days. No problem. So they just continued all this stuff out. Meanwhile, that the defendants who have been charged with crimes who were not being granted bail, or just sitting in there rotting in custody while other people are out on bail, because that was a political prosecution, the others are not. And so the question was, is there going to continue to be a double standard here? And we're starting to see maybe the government is going to have to hold closer to the original standard. If we're seeing Antifa and BLM people get diversion deals where they get no criminal record, as long as they are law abiding for a certain period of time, why is that same benefit not being provided to other defendants in similar situations for similar violations?

Speaker 8: 1:17:01

Maybe it is.

Speaker 1: 1:17:02

Maybe it's going to start trending that way. But you know, the Ashley Babbitt case is just another example of that double standard. We don't even get an, uh,

Speaker 2: 1:17:11

A grand jury investigation into it. It's just, they just decide, no, we, Hey, we reviewed it. Not going to happen.

Speaker 8: 1:17:17

Thanks for playing. Let's go to questions. Let's deal with them.

Speaker 2: 1:17:22

The questions we've got best. Say Magento says, please don't compare Briana Taylor shooting with Ashley Babbitt case. The former officers dealt with armed resistance and shot fired at them. Babbitt was unarmed. Uh, yeah, you're right. So the facts of those cases were, were accurate. Now. Uh, Kenneth Walker, Brianna Taylor's boyfriend was armed and he shot back at the police. Rightfully so because they were breaking into his house, shot one of the officers in the leg. And so there was an exchange of gunfire in that situation. Brianna Taylor of course, was killed unrelated to that. But my point here is nothing to do with the victims of the crimes. It has everything to do with the cops and the standards that the cops are held to when they start doing things like firing their guns at people or towards people like through apartment buildings. That's the, that's the question. Some cops just sort of don't get charged with crimes. Other cops do get charged with crimes for very similar conduct. And the question is why the officers in Briana Taylor's case didn't get charged the officer in this case didn't get charged. So we have to distinguish

Speaker 8: 1:18:21

Between the two. Why is that? We have

Speaker 2: 1:18:24

Our next question comes from hack consulting. If we can't find out who killed Ashley Babbitt, why do we know who killed the ones that are making the news? Right? It's a double standard. If the state is going to have a strict rule to prevent us from knowing the facts with Ashley, they better hold on to every other case too.

Speaker 8: 1:18:39

Yeah, that's a good point. Uh, norovirus

Speaker 2: 1:18:41

Says, should anyone mention the conspiracy theory that is going around? There are multiple videos on YouTube and elsewhere that Bobbitt are bad. That was not actually killed. The entire thing was staged. I'm not sure what to believe at this point, because there was no autopsy revealed really there was no name released of the shooter. There's no nothing released, however likely she was shot. And from the fairness standpoint and his horrible injustice that there is no investigation. Well, they did some, you know, we, we, we read the investigation, you can see how, how much went into that. But

Speaker 8: 1:19:10

You know, it, it, I, I don't

Speaker 2: 1:19:13

No about that conspiracy theory. I don't know if that's, you know, if there's any truth to that or not. She looked like she got shot and got killed to me, but it is interesting if there's no autopsy, I would guess that there, I would guess that there is, but I, you know, I don't know who knows anymore. It's hard to keep track of this stuff. So under siege says, why was use of force justified? She was the only person out of thousands that was killed. There were cops right behind her. He did not need to shoot. So

Speaker 8: 1:19:36

Yeah, there you go. Yeah. All right. I mean, you know, I think, I think, I think cops shoot

Speaker 2: 1:19:43

Often a little bit too soon. That may have been one of them. Jeremy[inaudible] said the officer that shot Babbitt should at least be tried. However, people working in the Capitol are never held accountable to the law as the leaders of the free world. They should be the ones who set the standards. Yeah. Good to see you. Jeremy, we have HLB says if willingness is so hard to prove, then why don't we,

Speaker 8: 1:20:02

We use a more applicable word.

Speaker 2: 1:20:06

Uh, so, uh, yeah, just change the word right. To something that's easier to prove. I like that strategy. It's good legal strategy there. Good to see you HLB. Thanks for joining in. And those questions all came over from watching the watchers.locals.com. And we've got one more segment left before we wrap up the show for

Speaker 8: 1:20:23

The day. We now know that

Speaker 2: 1:20:25

The Democrats are intending to pack the Supreme court, whether there's any likelihood that that succeeds or not is a whole entirely different discussion. But we learned today that there is now a bill that is being proffered by Democrats in the house of representatives, specifically Jerry Nadler and others that is seeking to expand the size of the Supreme court in a move. That would

Speaker 8: 1:20:46

Basically be a catastrophic

Speaker 2: 1:20:50

If exchange for this country. And so we're going to go through this. We're going to look at the actual bill itself, one that is being put forward. We're going to hear from Jerry Nadler, we're going to hear from Mitch McConnell. And I think we even might have Nancy Pelosi. So let's see what's going on. We're going to frame out what this means. We're going to look at the structure of the current Supreme court and how it might change if the Democrats get their way. So let's get into it. First story comes over from the wall street journal.com says democratic lawmakers. They present their plan to expand the Supreme court. The initiative runs counter to Biden administration's commission on overhauling, the court after three conservative Trump appointments. And so, yeah,

Speaker 8: 1:21:25

Trump, you know, really

Speaker 2: 1:21:27

Did a number on the Supreme court from a conservative perspective. I got three different nominees and the Democrats are not happy about it. Lawmakers who are Democrats planned to introduce legislation on Thursday today that would add four seats to the Supreme court, an initiative that has slim hopes of passage, but reflects Progressive's impatience with president Biden's cautious approach towards overhauling a court last week, Biden signed an executive order establishing a 36 member commission to report back within six months on possible changes to the Supreme court's website, memberships jurisdiction, lifetime terms, Mr. Biden appointed former Obama white house counsel, Bob Bauer, Yale law professor Christina Rodriguez, as co-chairman of the commission. Other members include many widely respected scholars, including some noted conservatives, Jerry Nadler, from New York and representative hake Johnson in New York

Speaker 8: 1:22:23

And York says we need more than a commission to restore integrity to the court. So that's going to, that's going to sit well with the current justices. There's no,

Speaker 2: 1:22:33

Oh, integrity on this current court. So we need more than a commission to restore integrity, set ed Markey of Massachusetts. He's co-sponsoring the legislation. We have the white house. They didn't respond to comment. Supreme court also declined to comment. So you've got a little bit of tension here in the democratic party. You've got president Biden who, you know, probably recognizes that this is not a good political move to try to pack the court. Probably I think the people in his administration recognize that, which is why he sent this to a commission to die, or that may sort of justify that he was doing something about this, right? All of the Democrats and liberals are angry as hell that Trump got Gorsuch and a Coney Barrett and Kavanaugh was just, Oh, it just grinds them. So they want some action on this stuff and they want it now. But by knows that if this, if this is something that is in the political Zeit guys for the foreseeable future that come midterms in 2020, which is right around the corner, they may be punished badly and ended up losing the house and the, and the Senate as a consequence. So he wanted to send this thing up to a commission. Democrats, not happy with that. So now we have Jerry Nadler and others who were saying, we're going to go pack this thing. And you, you, current judges on here have no integrity. They're garbage. So we need to add literally another four in order to balance this thing out. And I want to show you what that breakdown looks like. But before we get there, here is Jerry Nadler explaining what he wants to do today.

Speaker 9: 1:23:59

Justices up to Congress and Congress has changed that number seven times in the history of the country, our founders understood that it was the country and the judicial system evolved. The court needs to evolve with it. And this legislation represents a much needed next step in that evolution. Many people think about the Supreme court in terms of its individual members and their right to do so, but it's also the fact in addition to what we were referring to a few minutes ago, uh, in terms of the legitimacy of the court, the efficiency of the court is another question. Nine justices may have made sense in the 19th century when there were only nine circuits, only a few hundred appeals were filed before the court every year. And so many of our most important laws, everything from civil rights to antitrust, the internet, financial regulation, healthcare, immigration, and white collar crime simply did not exist. As far as the court was concerned and did not require adjudication by the Supreme court. But the logic behind having only nine justices is much weaker today. When there are 13 circuit courts, thousands of cases filed before the court each year and the full range of statutes and regulations that make our economy and our society work, ah, unlike through most of our history, the Supreme court accepts your area, accepts cases in a tiny, tiny fraction of cases. And that means that most cases, the vast majority of cases, there are overwhelming majority of cases don't get considered by the Supreme court, which they are entitled to do. And throughout much of our history, did our predecessors made eminent sense when they re

Speaker 2: 1:25:42

Somebody should get that guy a stool or like lower the mix a little bit. I mean, look at that, like just boost, get it, get him a booster seat so we can see him a little bit better. Put the microphones down. So there's Jerry Nadler coming out and saying that, look, we need more justice in this country. Okay. The Supreme court's too small. We only have nine justices. We have 13 circuit courts. So it just makes sense that we just add, you know, another handful of, so that we can

Speaker 1: 1:26:04

Get up to 13 so that it just, we have nice synergy there. You know, we, we need more justice in this country. We need more, uh, appeals. We need more oversight. We need more stuff. The rest of the government is exploding in size and spending. So why not increase the Supreme court?

Speaker 8: 1:26:19

Right? We want more Supreme,

Speaker 1: 1:26:22

Not less of it. So he goes through and he's sort of making, making a practical case for the change. When we all know it's political garbage, you want to put four new liberal justices on the court because you didn't get the chance to do so. When Ruth Bader Ginsburg died. Now this is the bill that they are proffering. You can take a look at it. It says here they want to amend title 28, a U S code to allow for 12 associate justices of the Supreme court. So, uh, we don't have a title or a number on the bill yet, but it says it's going to amend title 28, us code four 12 associate justices to the Supreme court. Be it enacted Senate and house of representatives. This act may be called the judiciary act of 2021. They're going to amend the code. They're going to strike what says here, a chief justice and eight associate justices. They're going to just delete this stuff, get rid of that. We don't like that. That's not enough justice here. We want to expand the hell out of this thing. So what are we going to do? We're going to go up here and say, we're going to rewrite in here inserting a chief justice of the United States and 12 associate justices, any eight of whom shall constitute a quorum. So we're going to get rid of this section and we're going to add this section down here. So we're going to move it from nine to 13. And this is what the current Supreme court looks like. If you have forgotten about this. And so we've got six, three, we've got nine seats right now. We got judge Thomas, who we're big fans of over here. We've got Gorsuch. We got Kavanaugh. We got Alito. And you may recall that judge Barrett was the one who just replaced Ruth Bader Ginsburg. And so Ruth Bader Ginsburg used to be sort of over here. It used to be five to four, but because Amy Coney Barrett is there. Now it's six to three, technically. Now there's a lot of argument about John Roberts over here. Kind of put him in the middle because on a lot of issues, he is liberal. I mean, we got Obamacare because of John Roberts. He said that that was a tax and that was authorized. So, you know, you can really make the argument that on many issues that it's actually still sort of a five four, just because of the fact that Roberts is always siding with the liberals. And so what do the Democrats want to do? They want to change it to this. Currently we have this as a court, so they want to add literally four other seats to it. And what does that do to the numbers? Notice how it goes from six to three, down to a seven to six. And it's weird because if they get this passed right now, then guess who gets to nominate these

Speaker 8: 1:28:48

Well, Joe Biden does. And guess who gets to confirm those people, the democratic

Speaker 1: 1:28:54

Controlled Senate, right? And they're going to, and

Speaker 8: 1:28:57

They've got the wherewithal to do it. They can pass this quite

Speaker 2: 1:29:02

Easily. So this, if they get the support, now this is what it looks like, right? So this is what it is currently. This is how they want it to be. And it's very curious, because it seems sort of like there's some tension here, Joe Biden originally said that they were going to study this issue. So why is Jerry Nadler? And these other people suddenly submitting this bill what's going on here? Have we gotten the result of a study? Do we even know whether this is going to be good or useful, or whether this helps us at all? Here is an analysis from the wall street journal. It says the Biden orders, a study of Supreme court changes. He ordered a commission and he said, it's going to be a bipartisan commission. He said that that was going to happen during the campaign. He hasn't said whether he will endorse any changes in response to the commission's report. So Biden formed a commission, but really we don't know if he's going to do anything with the analysis, right? Nobody knows white house, press secretary. Jen Sacchi sat on Friday that he would review the report and it would impact his thinking moving forward. So that's good. That's good. It's going to impact his thinking. That's great. That's good. You know, we want things to impact Joe. Biden's thinking because I'm not sure how much of that is left. So this will do that, which is a good thing. Senator ed Markey supporter of expanding. The courts said he welcomed the creation of the commission, but after years of Republicans, upending precedent breaking their own rules, stealing seats on the Supreme court, in order for, uh, to use it as a political pawn, we need more than a commission to restore integrity to the court. We need to abolish the filibuster and expand the Supreme court. So these guys are just out of control. We have Ben Sasse dismiss. The commission is pointless. Exercise. President Biden knows that he doesn't have the votes in his own party to pack the court. He knows that court packing is a non-starter with the American people. He knows the commission's report is just going to be a tax funded, taxpayer funded doorstopper white house said Bob Bauer, former Obama white house council, top Biden campaign advisor would co-chair the commission along with Yale law professor Christina Rodriguez commission includes some of the nation's best known legal scholars, former federal judges, and a lot of people who, you know, really, uh, apparently know a lot about this issue. Membership leans liberal, but there are some influential conservatives, political scientists, Keith Whittington of Princeton advocate of originalism, Adam White of Antonin Scalia law school. All right, we have the white house set topics before the commission will include the Genesis of the reform debate. The court's role in the constitutional system, the length of service and turnover of justices on the court, the membership and the size of the court and the courts, case selection, rules, and practices. So it's pretty expansive. Here is Mitch McConnell opining weighing in on this attempt to change the fabric of the country. Here is Senate Mitch McConnell. Senator Mitch McConnell says if Republicans had introduced a bill to add four Supreme court seats in the last president, there'd be wall to wall coverage all over the place.

Speaker 10: 1:31:53

One survey, one survey late last year showed a clear majority of Americans oppose packing the Supreme court, but the farthest left activists, aren't interested in the common good. They won't power and the same Democrats and the same corporate media that spent the last four years hyperventilating and declaring a new constitutional crisis was underway. Every 30 seconds seemed to be perfectly content to play along. Now, if Republicans had introduced a bill to add four Supreme court suits for the last president of field, there would have been weeks a wall-to-wall outrage on every newspaper and cable TV channel, non stop. Now it seems the main strategies are, it was shrugged off and looked the other way or to actively play along and somehow let them creed.

Speaker 2: 1:32:54

All right. So he used the word hyperventilating, which is my word. You know, all these people, every time there's a little bit of a rub and something going on, just breathing out of control. They can't handle it. And he's absolutely right, right. If Donald Trump had came out and said, Hey, you know what? We need to reform the Supreme court. How much bloviating would we have heard from everybody saying, this is the danger to our democracy. They're undermining America. This is not who we are. This is American. This is dictatorship. Trump's orange Nazi on and on and on. And on Democrats. Now actually have a bill that is being submitted into Congress and nobody even really bats an eye about it. It's just kind of all right, pack the court, whatever we have Nancy Pelosi. Not really saying that there's going to be much movement on this, at least not yet. She says we're not going to vote on it yet. Through cold water on the bill availed, uh, unveiled earlier today, she told supporters that she has no plans to put the proposal on the floor. This comes over from hot air.com. This is ed Morrissey. Good website. Good follow says here. How speaker Nancy Pelosi does not support the effort by congressional leaders to expand the court from nine to 13, justices will not bring the bill to the floor vote. She made a revelation during her weekly press briefing offered to start to know after being asked, if she's going to move this forward. So as I support the president's commission to study such a proposal going on to say that she and her members were focused on the infrastructure package, not the judiciary as her, whether she would eventually support court packing the court. She said the jury was still out on the matter. Oh, that Pelosi she's so clever talking about packing the court. The jury is still out. See that, see what she did there. So clever, no wonder she's been in charge of the house of representatives for the last two decades. Let's take some questions over from locals.com. Our community is watching the watchers.locals.com is the web address. First up, we got Todd trots as Robert. Do you like Barnes his idea that we should have more justices, but the new justices should be evenly chosen by each party. His reasoning is that the caseload for the Supreme court is too heavy to hear all the cases they should. Well, I don't know. You know, I, I don't want to throw shade on Robert Barnes, his idea, because I like his ideas generally speaking. So I'd like to look a little bit more into what he's sort of proposing there. Um, justice should be evenly chosen by each party. My problem with that is I hate the parties. I hate the two parties, right? I think they're both garbage. So I don't want, I don't want political parties. You know, I know, I know practically that's how it works is we, we, we pick them. But, uh, I just hate the idea that we're going to just have, you know, like boiler plate, Republican judges and boiler plate, liberal judges. It's like, can we just get some people who are Americans who like think in a political philosophy, like originalism and are we getting a bunch of Federalists on there and anti, you know, it's like, what's going on. My only thought on that right now we have chairman of the board says, I hate to point out the obvious, but don't, they recognize that as soon as Republicans are back in power, they can just expand it again. And it never ending cycle. Or is that part of the democratic plan to change voting and immigration laws to ensure they are in power for the rest of time? Yeah, that is, I think exactly the plan, right? We've we've seen some of this Tucker Carlson was even talking about this about sort of the importation of votes in importing people from different countries and different demographics who vote in one particular manner. Tucker Carlson had a whole brilliance, actually a monologue about that if you miss that. But yeah, it's, it's this idea that people are coming in the fabric of the country is changing and you're seeing people actively advocate for that. I think that there was a clip that Tucker played about, uh, Julio Castro, I think talking about Texas turning blue and basically attributing that to immigration, right? You're, you're, you're importing a population that is going to vote one particular way and that's going to change the fabric of the electoral system indefinitely. So, uh, maybe the Democrats just, you know, see the writing on the wall, or maybe they include some provision that says that, but you know, basically make the change and pull the ladder up to make the change back more difficult down the line. You can't put that past them either. We have noro, Vajra says, Rob, where do you stand on a big picture of things? As far as how influential the Supreme court is in our society and our law, I thought they were very important. And now not so much, I think they are becoming irrelevant. Just look at the L the E dash L dash E Chans, and the lack of effect that the Supreme court had on fairness on that issue. Yeah. So it's a great point. You know, the Supreme court is obviously it's a very important institution. They still carry a lot of weight and legitimacy currently, but I do agree with you, uh, Nora, that, that this was a ball dropping era of the Supreme court, right? We, we had a very, very important constitutional question during this last election that has not been rectified. And it has nothing to do with Joe Biden being legitimate or anything like that. Joe Biden is a president. He's legitimate. All right, don't throw me out the window, YouTube. Okay. That's that's the deal, right? He got elected he's in office. He's been in office for the last, uh, however many months now, and that's a done deal. That's not what I'm talking about. The question the legal that was not answered is whether States can sort of divest the power of elections from the state legislatures in contravention to the constitution. Can board of elections or board of electors enter into settlement agreements, can secretary of States do that? Can courts on their own modify election rules, Supreme court didn't answer any of that stuff for us. They just sort of punted on that, which was very ineffective, right? Regardless of, of what you want the outcome to be. It's irrelevant. Right? I, I would have liked the Supreme court to just give us an answer because this is going to happen again down the road. And I think the Supreme court really missed the Mark on it. You know, their support, I suppose that's the function of the Supreme court it's to get in there and settle these disputes for us. And I thought that they should have on that one, but they kind of did by not answering the question, they kind of just said, yeah, it's a free for all, do whatever you want, which I think is ineffective. And it is disappointing that we didn't get more guidance out of them. I think that they really missed the Mark and undermined their reason for existing, which is to settle those conflicts of the law Liberty or death says, I think they're going to end the filibuster and really go for it. I see creepy Joe putting one, maybe two on then he has gone. So VP becomes 46 and will be the first woman president to put a woman of color on the bench. Maybe even Bruce Caitlyn, Jeff, the constitution, doesn't say a member of SCOTUS must be a lawyer. Oh my goodness. Liberty. That is like a cascade of bad things happening just one after the other. Well, listen, let, let me not say that, right. If we have a woman of color on the back, I have no problems with that. If a Caitlin Jenner goes on the bench, is she a lawyer didn't have any legal expertise or anything like that? I don't have any problem with any demographics of any sexual orientation of any judge, as long as they're a good judge, if they're an originalist and they want to look back to the original intent of the constitution or the underlying rules that, that sort of were enacted back then and extrapolate those to our modern era. I don't care what you look like or who you want to sleep with or whatever. Doesn't matter to me a bit. Uh, we have hack consulting says that you finished beyond order by Peterson. So I am on rule 10 right now and I have, uh, I actually got two of his posters. They're right over there. I can't go get them and show them to you cause I'm hooked up right now. But, uh, I'm on rule 10, very slow read because it's some heavy lifting. Now, the first, I would say the first three rules, it kind of took me a while to get through. Then I started picked up the pace on the remaining rule. So I think I have two rules left. Uh, and uh, yes, let's take a quick look at the rest of your comments. As I started it earlier today, finally played hooky with college and did something better. Had the book for two months just now had time that I was able to stake out and use how I want to good for you. Hack consulting. Yeah, it's a good book. You know, the first I posted on Twitter, I said, I was, I think on rule three, chapter three, whatever. And I already had like three existential life crises by that moment in time and is some heavy stuff in there, but it does get a little bit easier if you start reading it, Jordan Peterson beyond order, uh, you know, I'd love to talk to that guy. At some point, I don't have the stones to reach out to him and see if he'll come on the show, but maybe we will do that sometime down the road. Cause a huge fan of his work. He's been very, very instrumental to me and helping me to sort of organize and structure my life in a good, positive way. So huge fan huge recommendation. Go pick up beyond order from Jordan Peterson. Great book. We have news. Now Wyoming says part of me wants them to end the filibuster completely impact the court that will really turn the system around in 2022. And the other side would gain control again. Yeah. I mean the, I understand what you're saying. It's like, let's just go nuclear, right? If we want to see the Democrats just go, hog-wild go for it. Let's see what happens. And then we'll just pull out all the stops. Yeah. Give them the court, give them the, give everything, have fun with it. See how this country turns out. We're going to have 50 different California's. And that is not that ideal for many people in this country, Californians might like that paying, you know, astronomical taxes on everything and walking around, avoiding literal crap on the streets on a regular basis. But I don't want to live like that. So if you, if you do give that to the Democrats, maybe we start to see some of that trickle down onto us. And the reason why people find that to be attractive is because it's called accelerationism right. Accelerationist let's just get to it already. Right? Rather than this slow sort of like slow boiling, frog and hot water situation, let's pull out all the stops. Let's see what it is. Impose your draconian tax policies, tax everybody at 90%. See what happens. People will actually leave the country. And sometimes that may be what people want. Let's just get to it next up. We've got honestly, rational says it's odd to be lectured by Natalie about the founders. See where he is on the branch that could change the laws they are concerned about. I feel like it was more about wanting influence, wanting to influence the court, but who knows, maybe he just really likes the number 13 and plans to add some constitutional originalists. Well, that is very, very, very, uh, uh, uh, that you're giving him the benefit of the doubt on that one. I'm going to guess that there's not going to be any originalists who make up the additional four that the Democrats want to throw on there. But you know, this is there's historical precedent for this. Remember that FDR tried this maneuver back when he was in his four terms and he tried to pack the court. What happened member FDR was really trying to get a lot of the new deal passed and the Supreme court was striking everything down. You don't have the right to do that. What are you nuts? There's commerce clause, all these limitations on the federal government. You're trying to basically federalize all of these different industries constitution. Doesn't give you any authority to do that. So the Supreme court was striking down that. Nope, Nope, Nope, Nope, Nope, Nope. Then FDR said, no problem. We're just gonna expand the court. We're just gonna bump it from nine to 13. We'll see how you guys like that. Guess what happened after that threat Supreme court started to just rubber stamping all of his stuff up. Yep. Nope. You want that alphabet letter? Nope, no problem. You want those three chirp, you know, work program, this program, whatever. All good to go have fun. And so they call that though. The, the, what is it? The switching time that saved nine? I think you can Google that, look up that story a little bit, but it's, you know, it, it sort of saved the nine justices because there was some, some differing, uh, rulings that were more favorable to Roosevelt in the, in the court, stuck with that number as a result. So, uh, very interesting history there, but I, yeah, truthfully, I don't think that there's much likelihood that this actually changes. I think that, uh, it is sort of political red meat for the base of the liberals. And then it's gonna, you know, get those particular people who are behind that reelected. But is this going to go anywhere? I don't think so. I don't think that they're going to have the votes in the Senate, Nancy Pelosi and Joe Biden. They recognize that politically this is way too volatile. So I'm not particularly concerned about it. I am curious though, as to what the current justices do as a result of this threat or of this attempt, now we just heard them all saying there's no integrity on the court. I wonder what judge Roberts has to say about that. Okay. Somebody who is more inclined to vote with the left now, they're now they're all calling him. You know, somebody without integrity, uh, kind of a piece of garbage and they want to water down his role in the Corps right now he's one of nine. He's the chief judge. But if he becomes one of 13, his part of the pie suddenly gets watered down. It's diluted by the other judges. And I don't think any one of them wants to do that. Right? They all want legacies. They all want to stand out on the courts. And so if you sort of, it's already hard to stand out, be one of nine on the court and you want to, you know, you got to get the opinions, right? The majority opinions and sort of create this persona over decades, your opinions, not, not every judge does that, right? There's there's only kind of a handful of judges throughout our jurisprudence that really hit that level. You go, gosh, that guy was just somebody who changed the fabric of the judiciary for the better. A lot of other judges just kind of are bumps on the log. Just kind of, Oh, I'm a judge for a little while, right? Nothing consequential, but they all want that. So even though they're on the highest court in the land, they all still want to leave their Mark there, a legacy to leave. And it's hard to do with nines. If you add another 13, that's kind of insulting to these judges who are currently on the bench and maybe they're not, maybe they may not be so happy about that. The next time that one of Biden's requests ends up in the courtroom. So very good questions, everybody. Thank you for those. Once again, those came over from our locals community, watching the watchers.locals.com is a place. If you want to go and support us over there and we want to welcome all the tremendous new people who did join up today, let's say hello to these awesome individuals. Look at this new design. Oh my goodness. Ms. Faith, outstanding round of applause for me, faith. Everybody in the chat. Yeah, she's just outstanding. Look how beautiful this looks welcome. Everybody. Let's get big welcomes to blue collar worker. Welcome to the community. We've got beep beep boop in the house. Not beep boop beep. We have BP. Boop. We have pro bono. Welcome to the community. We got Jordan. Oh four, nine, five Duff, few Scouts in the house. Gregory Nicolas. Welcome to the community. Honestly. Rational saw you today. Jack Sparrow. Welcome to you. Well David, no D David one in the, we have mock IJV H L B saw you today as well and Vader. Um, Sombra by dear. Um, Sombra uh, is that a foreign language? Hopefully that's not profanity. That's I don't know what that means, but it looks like a foreign language. I also want to, Oh, first of all, welcome to all of you. Thank you so much for joining us means the world to us. We're really having a lot of fun building up our locals community. We couldn't do it without you. So thank you so much, sincerely for helping us out and joining a great, a great place to be also want to thank all of those of you who participated in the chat today. Big shout out to Patto Viva Frey was in the house. Make sure they get a, uh, subscribe over on YouTube as always. What's up to hack consulting. Jeremy[inaudible] in the house. We got chairman of the board, Todd trout, Liberty or death news. Now Wyoming woodworking, medic justice first, and you know who you are, everybody. Thank you so much for being there and look at this new little thing that Mr. Ma Fox put together for us. Look at this, Oh, these are all of our other supporters who are on locals.com. And so we'll just let that scroll for a little bit. There's so much that you can get over at that community. Look at all these people who are just being a part of building a new little, a new little community where we can talk about a lot of things like free speech and low taxes and justice reform, which is really what this whole show is about. It's about accountability and transparency and making sure that the system is held accountable by talking about these issues, look at this thing just keeps going, Oh my goodness. Well, and I want to let it run to the end because you're going to notice, I think a little something that comes out at the end and in the future, I'm going to have to work on something else to talk about while I fill this time. Is it coming? All right? Maybe it's not there. We'll see if it comes tomorrow, but we are very grateful to ma put that together. And so we're going to run that. I think at the end of our, our clips so that everybody on locals gets a little bit of a shout out at the end of our videos, even when I don't have time to say thank you. So we're going to we're we're we're, we're always trying to up our production value here. We're trying to play around and have some fun. So if you have any suggestions, let us know, thank you to mom for putting that together as beautiful as it looks super cool. 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So if you happen to know in the state of Arizona who has been charged with a crime things like DUIs, drugs, domestic violence, any felony cases, misdemeanor cases, traffic cases, old warrants, old mugshots. If you want to restore your rights to vote, possess a firearms, apply for federal benefits. If you just want to clear things up, we are the team to help you do that. We have an awesome group of people here who are seriously dedicated to helping people. And we're very passionate about what we do and we're not bad at it. So if you need some help or know anybody that does, we would be honored and humbled if you sent them our direction so that we would have the opportunity to see what we can do to help. We'll make sure that they leave our office better than they found us. And so we'd be very grateful for any of those referrals. If you happen to have them, otherwise, we're going to be back here tomorrow. We're going to plug along. I don't expect to have much on the show in trial, but we still have to talk about the jury instructions. So we're going to go through those. I'm not sure we're going to see any in court activity tomorrow. I don't know what the deal is with that, but we are going to talk about it because tomorrow's Friday, we got to come back ready to rock and roll on Monday with closing arguments. And so I want you to join us for that and whatever news develops, because there has been a lot of it lately. So everybody want to thank you once again for being here and being a part of the show today, everybody have a very lovely evening sleep well, have a nice big hearty dinner. I'll see you right back here tomorrow at 4:00 PM Arizona time, which is 4:00 PM on the West coast, 5:00 PM, mountain 6:00 PM. Central 7:00 PM on the East coast. And for that one, Florida, man, I'll see everybody tomorrow. Bye-bye.