Chauvin Judge Finds Aggravating Factors, Fourth Circuit Rules on N-Word, McMichaels Arbery Update

New order from Judge Cahill in the Derek Chauvin trial as the sentencing date approaches. Fourth Circuit Court of Appeals issues interesting ruling on criminalization of speech and the use of the “N-Word”. Gregory and Travis McMichael are back in court over the Ahmaud Arbery shooting. And more! Join criminal defense lawyer Robert F. Gruler in a discussion on the latest legal, criminal and political news, including:​

• Judge Cahill, who presided over the Derek Chauvin trial, issues a new order on the verdict and findings of fact regarding aggravated sentencing factors.​
• The Judge found that among other aggravating factors, Derek Chauvin abused a position of trust and authority.​
• Review of Minnesota sentencing guidelines and commentary to see the rules used in sentencing Derek Chauvin.​
• Breakdown of Judge Cahill’s aggravating factors order for Derek Chauvin.​
• The Fourth Circuit Court of Appeals issues a new opinion in USA vs. Bartow over the use of the “n-word” and criminal charges.​
• In the case, stemming from a 2018 incident, Air Force Lieutenant Colonel Jules A. Bartow was charged with a crime for using the N-word towards a store employee.​
• Review of the Fourth Circuit Court of Appeals opinion, which analyzes free speech and “fighting words” and determines that this case did not amount to criminal conduct.​
• Gregory and Travis McMichael are back in Court this week arguing over evidence in the Ahmaud Arbery shooting case.​
• Superior Court Judge Timothy Walmsley has scheduled hearings on legal motions Wednesday and Thursday at a courthouse in Brunswick.​
• Defense attorneys for Gregory and Travis have submitted 12 legal motions, including addressing admissibility of Arbery’s prior convictions.​
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Transcript

Speaker 1: 0:00

Hello, my friends. And welcome back to yet. Another episode of watching the Watchers alive. My name is Robert Mueller. I am a criminal defense attorney right here at the RNR 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 system with a hope of finding justice. And we're grateful that you are here in with us because we've got a lot to get into today. We're going to start by revisiting the Derek Shovan case because judge Kay Hill today came out with a new order that is basically finding that Derek Shovan is going to be facing aggravating factors when it comes time for sentencing. And so we want to break down what that means. We have a copy of the order as well. It's going to go through things like whether or not he abused his power as a police officer and a litany of other different factors that are going to be used in sentencing. And this is important. This is going to decide whether he gets, you know, 10 to 12 years or something dramatically longer than that. So we have a copy of the order. It's not particularly long, it's about six pages. So we're going to read through that and point out a couple of things. Then we're going to change gears. We're going to talk about the fourth circuit court of appeals. This case is not really in the news. Not much. You may have seen some, a little blurbs about it. It is an interesting case because it involves the N word. And in particular, the criminalization of certain language, uh, there was an individual who was charged with a crime for using abusive language towards somebody else that involved the N-word and the fourth circuit court of appeals came out today and said, well, that's not a crime. So we want to go through that opinion as well. Interesting story. It sort of has some free speech implications, obviously, you know, a absolutely horrendous and disgusting word. And so it can be a little bit provocative when you start to hear the four circuit come out and say, well, those are fighting words. Anybody who knows what that, you know, knows that word knows that it is a fighting word. So you sort of have this little bit of a disconnect there, but there's a good reason for it. We're going to break that down. Then. We're going to talk about the make Michaels. If you recall, about a year ago, we were talking about the Amman Arbery shooting that, uh, has sort of captivated the nation's attention. We have the mic Michael's Travis and Gregory McMichael. Uh, Gregory was the former police officer that was out of this particular area and, uh, ended up, you know, sort of chasing down and shooting and killing a mod Arbery. And so those two gentlemen now had a court date, uh, today and tomorrow, and they are duking out a lot of the legal issues that need to be hashed out at this moment in time. And so I think there were 12 different legal motions that are now being sort of fleshed out in the court of law that were submitted by the MC Michael's by their defense team. And so we're going to break into that as well, a little bit of an, a Mont Arbery case update. So we've got a lot to get into, if you want to be a part of the show, I want to invite you to do that. By going over to watching the watchers.locals.com, it's where you can connect with other people. And we've got some pretty cool stuff coming up. I want to remind you that we've got a couple save the dates May 22nd. It's going to be our community virtual meetups. So there's a registration form that is now available, uh, over at our locals platform. So go check that out. It's in the pinned comment near the top. So if you want to register for the monthly meetup, it's going to be on the fourth Saturday, every month, moving forward. So if you want to do that, you can go and register. I want you to register if you are a supporter at locals, just so we can kind of get a head count. We can see, make sure that our, uh, bandwidth is, is sufficient. Get an expectation of how many people are coming. If anybody wants to come at all. I mean, maybe it's just me talking to myself there, but it is coming up May 22nd. Then the next one will be in June, June 26. We've also got on Saturday, June 12th. I'm going to host for free. If you're a local supporter, the law enforcement interaction training, uh, which is going to be about a 90 minute training that we're just going to go through some of the most common scenarios when it comes to dealing with law enforcement, what happens if they call you what happens if they show up at your door? What happens if your kid calls you and they're at their dorm room? You know, there's a lot of different scenarios and, uh, you know, we all drive cars. So what happens if you get pulled over? What do you say? You know, you're supposed to remain silent, but how does that work in reality? Well, we're going to learn more about it on June 12th. So I want to invite you to be a part of that. And as always, you can download a copy of the slides here that we're going to go through here@ourwatchingthewatchersdotlocals.com platform. And if you have a question, throw one in there right now in the live chat, cause Ms. Faith is going to clip those and then we'll address them after each segment. So, all right, enough of the introductory stuff let's get into the news. Derek Shovan is back in the news because he is getting scheduled for sentencing. And judge Cahill just today issued a new order that is saying that some of the aggravating factors that they were fighting over are going to in fact, apply to Derek Shovan, which means that the potential sentence that he faces is aggravated. It means it gets worse. And so we want to break down what is going on here to start, we're going to get some background information coming over from CBS local, the Minnesota affiliate. You may remember we spent a lot of time on this channel talking a lot about Derek Shovan. We covered the entire trial and the trials it's done it's over, right? Derek Shovan has been convicted. He's got three convictions, all three charges, but he hasn't been sentenced yet. And that, that is, uh, something that is up to the judge to decide how much time a person gets. So, you know, when you're doing a trial in front of a jury, all the jury is doing is helping us decide what the facts are, whether or not did something. And then the judge gets to decide what the penalty is. So we're sort of done with the fact finding phase of this case. Now we're moving into the sentencing phase, which is a whole different can of worms. I mean, there's a lot going on here. And I want to show you a little bit about how this works, but let's start by getting some background information over from CBS local. This article says that Derek Chauvin's conviction, a judge says that the prosecutors proved multiple aggravated sentencing factors, including cruelty judge. Peter Cahill said that they did so beyond a reasonable doubt, they prove some aggravating factors, including the cruelty, Minneapolis police officer Shovan was convicted. He set to be sentenced on June 25th. It was originally scheduled for June 16th, but then it was pushed back. According to Cahill, the judge that we spent a lot of time, launching prosecutors have proven beyond a reasonable doubt that Shovan abused a position of authority, right? He was a police officer. He treated Floyd with particular cruelty and children were present during the commission of the offense. And so all of these things are going to be aggravating factors. They're also saying that he committed the crime as part of a group. They say here, it was particularly cruel to kill George Floyd slowly by preventing his ability to breathe. Mr. Floyd already made clear he was having trouble breathing. The motion said on the cruelty factor. And so the way that this works is, uh, let me give you the high level overview on some of this stuff. So when you are talking about sentencing, I want to show you a chart here in a second, but before we get there, let me give you the high level stuff. So let's say for example, you're charged with a class four felony. So in Arizona we have six different scales or six different numbers of felonies, class one, all the way down to class six class one is going to be the most serious for a crime like murder. Class two is sort of less severe crimes like rape, sexual assault and those types of things. Then we work our way down. So let's say that you're Derek Shovan and you're charged with a class two or whatever the equivalent is here of whatever he was charged with in Minnesota, we have different criminal law statutes. So it's different, but let's say he was charged with a class, two felony for unintentional manslaughter murder, which he was convicted of there. Well, what we would do in Arizona is we would look at what are called sentencing charts. And so we would literally open up a sentencing packet that has all of these different spreadsheets in it. And you would just look on the chart and you would say, okay, class two felony, you go down the column, class two, you go over and you've got these different categories of offenses. You've got category one, two, and three and so on. And this is kind of the same structure, the kind of the same scheme that you'll see in many other States throughout the country. You're basically looking at charts. And so when you are navigating down and you're sort of going down the column and then scrolling over on the chart, you're going to see what's called a presumptive term. And this is where people were sort of kicking around the idea for Derek Shovan 10 to 12 years, 12 to 15 years. Cause they're looking at the charts, they're looking at the scale and they can say, all right, well, based on the factors that we have identified thus far, he falls in this box. Now what is happening now is the government is saying, well, that box is not appropriate. That's just the presumption. That's where we all start. We know it's a class two. We know he doesn't have any prior felony convictions. We know, you know, all the facts and the pertinent details of the case. And so when we go through our spreadsheets and find where to put that pin in the chart, we're looking at their presumption. Everybody starts right there based on the factors. But the government came in and said, yeah, but that's, that's

Speaker 2: 9:18

Not enough. There are a lot more

Speaker 1: 9:20

Important things that happen here that are called aggravating factors, right? He was cruel to him. He did this in front of children. There were other people who did this as part of a group, right? So it was more heinous because it was sort of a gang activity. Well, all of those things are aggravating factors. And so it's going to take it out of that box. That is the presumption right there in the middle. And it's going to move it towards a higher, more severe sentence. That's the government's job. They are ramming it that way to make it more severe. It's cruel children around did it as part of group K, got that. The defense. Now they're arguing the other direction. So they're going to come back with a bunch of mitigate or where they did. The judge didn't buy any of it.

Speaker 2: 9:56

Mitigation that

Speaker 1: 9:59

Sort of goes the other direction. Well, you know, he's never been convicted of anything. Well, he's a family man. Well, he, you know, uh, was relying on training. He had a long history serving his community as a police officer, blah, blah, blah, blah, blah. Then what the judge does is ways, both factors. The government submitted all these aggravating factors. The defense submitted all these mitigating factors and the judge needs to split it and sort of decide, well, this is what applies. And judge Cahill did and found that all of those aggravating factors or a lot of them applied, he said it was particularly cruel to kill Mr. Floyd when he was already having trouble breathing. He also says the victim being particularly vulnerable was not proven beyond a reasonable doubt. So four out of the five aggravating factors brought before the judge were found to be proven. It means the judge could go with a longer sentence for Shovan. Then the sentencing guidelines would indicate which would be a minimum of 12 and a half years in early may. Defense attorney, Eric Nelson filed the motion for a new trial stating that the court violated Chauvin's constitutional rights for several reasons, including not allowing the trial to move outside of Hennepin County and not sequestering the jury, the entirety of the case. He also says the jury committed misconduct and wants a hearing to throw out the verdict. So you can see over here from a couple of people over on Twitter said breaking court fines, multiple aggravated sentencing factors in the Derek Shovan case, he abused a position of authority. Number one, treated George Floyd with cruelty. Number two, children were present number three, committed the crime with a group with a participation of at least three other people, which is number four, which were the other officers, right? And he says, bottom line, finding four of the five aggravating factors mean the judge can sentence him to more than the guideline

Speaker 2: 11:33

Of 12 and a half years.

Speaker 1: 11:35

So you can see that this stuff is, is a, you know, it can sort of start compounding quickly. I want to see if I can,

Speaker 2: 11:42

Can pull up a link here for you,

Speaker 1: 11:46

Shows you what the sentencing guidelines actually look like, because

Speaker 2: 11:49

It is a big,

Speaker 1: 11:51

Big document. So this over from the Minneapolis,

Speaker 2: 11:56

Uh, criminal statutes, I didn't

Speaker 1: 11:58

Pull this up before I started recording my apologies, but let's take a quick look at this. So the Minnesota sentencing guidelines along with commentary, and this is a big document, look, 147 pages. So just wanted to scroll through this and show you kind of what they're all taking a look at sentencing guidelines commission. We have a determining presumptive sentences. So they're looking at things like the offense severity, the criminal history, the presumptive sentence, where do you all start? Right? Where does everybody start? You start at the presumptive and you can just see we're going to work our way down. Let's see if we can find any charts. Maybe that will give us some guidance or give us some, uh, some, uh, here we go, severity level of a conviction offense. So you see here in Minnesota statute requires the guideline provide for a range of sentences that are presumptive the minimum sentence. Can't be less the maximum sentence. Can't be more. Okay. So you just see how this works. This is complicated stuff. So you can spend a lot of time sort of kicking these rules around. So the prosecution can come in and

Speaker 2: 12:55

Say, well, we think that the

Speaker 1: 12:57

Criminal history score is higher or lower, and then they can just bounce around these charts. This is literally what we're talking about. Just go down these charts. This is even more, uh, complicated and convoluted than Arizona's. Uh, we have a lot of this, but we

Speaker 2: 13:11

Sort of have it organized,

Speaker 1: 13:13

I think in a better way personally, but maybe I just, I'm not familiar with this document, but you can see right. 147 pages for, for a sort of navigating the sentencing rules, sentencing worksheet, worksheets, sentencing guidelines,

Speaker 2: 13:27

A lot. There's a lot

Speaker 1: 13:28

Going on there. So the judge ultimately came out, went through everything and said, here's what we find. This is our verdict and findings of fact regarding the aggravated sentencing factors. And this, again, we know this court very well. We've spent a lot of time here. It says that the court acting as the trier of fact with regard to sentencing facts finds the following facts, support an aggravated durational departure. They have been proven beyond a reasonable doubt. So of course, as we know, May 25th, he was employed as a police officer in full uniform. And he used a restraint that the jury determined, ultimately caused Floyd's death. So you may disagree with this, but the jury says this happened, right? And the judge has to go on that basis. The judge can't sort of take what the jury listened to and throw that out. They could theoretically, but they didn't in this case. So they're going to be leaning on the jury verdict. And the jury said that Derek Shovan killed George Floyd. So on that basis, the judge has to then apply additional facts to that fact, to that finding as a police officer, the defendant, Derek Shovan had a position of trust and authority with the community. The trust placed in the defendant included, trusted anyone arrested would be treated with respect and only with reasonable force defendant abuses position of authority by using force that the jury has determined in returning as verdicts exceeded the authority granted by the peace officers. So the judge is really connecting this back to the jury verdict, specifically, defendant with two other officers, held Floyd in a handcuff position with the neon, the neck prolonged period of time, six and one half minutes and formed the restraints not only was a danger to asphyxia theoretical. It was communicated to the defendant because George Floyd, uh, because it was actually occurring, basically George Floyd was complaining that he couldn't breathe. And we know that Derek Shovan heard that when it became clear even to, by standards, that he was in medical distress was no longer responsive and had ceased the breathing defendant further abused his position of trust and authority by not rendering aid, by declining two suggestions from one of his fellow officers to place Floyd on his side and by preventing bystanders, including an off-duty Minneapolis firefighter from assisting, you know, I'm not so sure that I,

Speaker 2: 15:33

That, that particular, uh, point there, yes,

Speaker 1: 15:37

What Shovan did, of course was not humanitarian, right? He could have handled the situation much differently, but I don't know that the fact that you have, you know, an officer

Speaker 2: 15:48

Not allowing Jennifer,

Speaker 1: 15:50

Steve Hanson, the firefighter to come in and perform resuscitation or provide medical services that does not seem inappropriate to me. Right. He didn't know who she was. She wasn't in uniform. She wasn't part of the official, uh, uh, response in any way, shape or form that I recall. So I'm not so sure why an officer in the performance of official duties would just say, Oh, you're a medical person. Let me just come on in here and help me secure the scenes. I'm not sure that I really,

Speaker 2: 16:17

Uh, you know, by that, but, but you know, on the opposite side of that, yeah, there's a lot that, that that show

Speaker 1: 16:25

Could have done that would have been a little bit more sympathetic, empathetic to Floyd's situation. He, the judge says failure to render aid became particularly abusive after Floyd had passed out. And while still being restrained in the prone position, one knee, um, two and a half minutes was unable to detect a pulse. So we know all of that, the use of the knee and the back while restraining a suspect was not part of any training by the Minneapolis police department, the placement of the knee on the back, wasn't egregious abuse of authority to subdue and restate restrained Floyd, because he'd already been handcuffed for more than four and a half minutes. So we've got that. So that was all part of subsection. One that he abused a position of trust and authority. Then we move into the second prong. We've got also treated Floyd with particular cruelty, so same, same stuff in paragraph one. We also know that they're saying that it was particularly cruel to kill Floyd slowly by preventing his ability to breathe. When Mr. Floyd already made clear he was having trouble breathing. Yeah, I know. I know

Speaker 2: 17:24

That one. I know the slow

Speaker 1: 17:26

Death of George Floyd occurring over six minutes because of his positional asphyxia was particularly cruel because Floyd was begging for his life. And obviously it was terrified by the knowledge that he was likely to die. But during which the defendant objectively remained indifferent to Mr. Floyd's please. Yeah, but he was complaining about not being able to breathe before he was even in the ground on the ground. He was complaining in the back of the squad car. So

Speaker 3: 17:51

Was, was he having trouble breathing then? And if so, what was causing that?

Speaker 1: 17:55

Because nobody was on his neck or his back at that moment in time, subsection D restraining an individual in the prone position against the hard street all while holding handcuffs arms for more than nine minutes is a particularly cruel act. Prolonged nature of the association was by itself, particularly curl. All right, next, we have children were at the scene and we know that because we saw some of that. We heard some of the testimony that, that came out. Actually some of the very first people were under age, right? And they, uh, 14, 12, maybe they brought them in and their, their testimony was powerful. And we know that because the juror who was ultimately excused, who was the alternate that didn't make it into the deliberation room. She said, so we, we went through her notes, remember that juror? And she said, gosh, you know, 14 year old girl was crying.

Speaker 3: 18:37

I felt that it's all you need. If a judge says, Oh my God, this person is causing a 14 year old to cry. It's powerful

Speaker 1: 18:47

Bringing all the, you know, nanograms per milliliter and all this stuff, a fentanyl, nobody cares because there's a 14 year old girl crying right

Speaker 3: 18:52

In front of you. Children were present standing up

Speaker 1: 18:56

Only a few feet from where the defendant and other officers were restraining George Floyd in the street observed Mr. Floyd being as fixated as he begged for his life.

Speaker 3: 19:05

We're 17. And one was nine years old. Although these four

Speaker 1: 19:10

Children did not observe all the events. They did observe a substantial portion of Chauvin's use of force. And then we also have he committed the crime with active participation of at least three other persons. And so this type of stuff is supposed to be, you know, to stop sort of the dog piles that happen. You got a group of guys who were all sort of, you know, kicking the crap out of somebody. Well, they were, you know, it was, it was like a, like a gang ordeal type of a situation. And so, yeah, you were, you were, you were engaged in a situation that was a Dogpile and you need to be penalized more for that, because that is obviously unfair if it's you on a one-on-one situation. All right. That's okay. But if it's a four on one, like in this case, you plus three other people, well, that's just totally unreasonable. And because you are so unreasonable, we're going to add aggravating factors. That's kind of the theory here.

Speaker 3: 19:55

Well, in this case, yeah, there were four people, there were all cops, right.

Speaker 1: 19:58

Officer's lane and Kung were actively involved in the restraint of George Floyd that ultimately resulted in his death. Officer Dow was also keeping bystanders away. And there were even other officers there. Remember there was the other officer who was securing Floyd's vehicle. No finding is made as to whether the active participation of officers was accompanied by intent or knowledge to establish that they are offenders subject to criminal liability while they're being charged. And you better believe the government's going to ask for aggravating factors when they come.

Speaker 3: 20:28

So, you know, and this was a, this was another point in the

Speaker 1: 20:31

Trial. It's like, if Derek Shovan was acting so recklessly, if he was doing things that any officer would go, no, that's crazy. You can't, you can't do that.

Speaker 3: 20:40

Well, why were there like four or five other offices

Speaker 1: 20:43

There at the scene who didn't knock him off or say, Hey, stop this. There was the other who said, maybe we should roll them over, flip them over, but you know, nothing, nothing worth justifying, anything further on that? Just say no, where he's good right here. We're gonna keep him right here. All right. Sounds good. So you've got three other officers who were specifically there, the other officer who went and covered Floyd's vehicle, and there were other officers shortly thereafter, and nobody saw a problem with it, except now, now they all see a problem with it. So the court acting as the trier of fact, with regard to sentencing also

Speaker 3: 21:16

Finds that the government

Speaker 1: 21:18

Has not proven beyond a reasonable doubt that the victim was particularly vulnerable. So what they're saying here is that Floyd was handcuffed. And because you were sort of injuring a handcuff person that makes them extra vulnerable and you get, you get additional penalties for that. You know, if you are restraining somebody and then beating them well, that is very curl, right. Is very sort of inhuman to do that and humane to do that. And they will penalize you for that. So here they're saying, well, he was particularly vulnerable because he couldn't even defend himself. And you were basically killing him when his hands were behind his back in handcuffs. So they're

Speaker 3: 21:52

Saying, well, judge says,

Speaker 1: 21:55

Although he was handcuffs, he had still been able to resist the arrest and prevent three officers from seating him in a squad car, uh, before he was placed in the prone position. So that by itself did not create a particular vulnerability. In this case, the drug intoxication did not also render him particularly vulnerable compared to other victims of murder. So of course, you know, the judge is not taking any of the drugs into effect into account here, restraining Floyd in the prone position with the weight of three police officers on him for a prolonged period of time also did not create a vulnerability that was exploited to cause death. It was the actual mechanism causing death signed off on by judge Peter K. Hill. So that means folks that the sentencing that Chauvin's going to be facing is likely to be substantial. Okay. Four out of five aggravating factors. There's a lot that sentencing has been pushed back. As we know, this is a screenshot from the court docket two Friday, June 25th at 1:30 PM. And if you look over at the documents over there, you'll see that it's going to be a frenzy. K lot of media requests, a lot of people are going to be very happy about this sentencing day. You're going to see people doing cartwheels in the streets, racial justice, finally

Speaker 3: 23:08

America. Right?

Speaker 1: 23:12

Well, let's take some questions over from watching the watchers.locals.com. We've got trout Pat in the house. What's up trout, Pat, welcome to the community, says with all of the evidence and testimony from the first trial being available to literally everyone, how would an appeal second trial work? Is it possible? Yeah, it's absolutely possible. The same thing. It would be the same thing. Uh, now they could change it right now. They could change their themes. They could change their strategies. They could, uh, adjust it or even sort of Redis glows a bunch of stuff and, and make some maneuvers. But have when the judge remands it for a new trial, it's a new trial. And so they have to go through jury selection, again, everything we went through, they got to do the whole thing again, if that does in fact happen. Now, this one was a little bit unique because you're right. We all heard everything. So the defense is going to know exactly what Dr.

Speaker 2: 24:00

Tobin said, and they would have a

Speaker 1: 24:02

Second crack at hopefully being more prepared because he is, in my opinion, obliterated their case was very much the reason why I think that Shovan was convicted because of that testimony. Well, now they know it. They know what his game plan is. They know what his PowerPoint slides look like. They know what his little graphics and images look like, so they can prepare a response to that. And the government can do the same thing. They can, they can bring in another Tobin, right? And beef his stuff, add some more PowerPoint slides in there, see how it works. So it is not ideal, right? You want to get it right the first time. And that's why everybody was sort of scratching their heads about a lot of the decisions that were made by K Hill and the court to not do certain things like change venue, or even continue the case back, you know, even just kept, keep continuing it, continue it for another 12 months, another 12 months, just like what's happening out of Parkland, right? That happened in 2018, that trial still hasn't happened. So

Speaker 2: 24:53

There's, there's no real nece necessity

Speaker 1: 24:55

City to earth to, to, you know, hurry a trial through, in a situation like this. Now that's not necessarily good for the defendants either because justice delayed is justice denied. They want

Speaker 2: 25:06

A, a close,

Speaker 1: 25:07

You know, a reasonable outcome. And of course, Derek Shovan, doesn't want this hanging over his head for three or four years either. And he's got the right to a speedy trial. So we're balancing a lot of these different issues. But the last thing that anybody wants to do is to have this happen again, which is why people are not happy with Brandon Mitchell juror number 52, who may have blown the whole thing, Jeremy[inaudible] in the house

Speaker 2: 25:27

As does this mean

Speaker 1: 25:29

The judge denied the mistrial. So I'm not sure that I've seen a ruling on that one way or the other. Uh, the, you know, the judge is probably going to deny the mistrial and they're probably going to appeal it. And, uh, I'm not sure where we're at with procedurally with the appeal, Jeremy, but I have not seen anything about that. I know that the defense submitted their notice of motions and that's the last I saw. The last thing I saw on the docket.

Speaker 2: 25:51

It was a lot of the media, uh,

Speaker 1: 25:54

Submissions until this recent order came down from Cahill. We have LT 13 in the house. Does this give any insight into how the appeal will go? Will he punt? So I don't know that this does give any insight into that. I don't think that, you know, judge Cahill is going to do anything to sort of,

Speaker 2: 26:09

Uh, a

Speaker 1: 26:12

Undo, anything that came out of the trial. I think he's going to just try to button this thing up and move past it. And he's going to let the court of appeals and then ultimately the Supreme court deal with it. Now, I don't think again, that this has anything,

Speaker 2: 26:23

The thing too, uh, there's nothing to glean

Speaker 1: 26:27

From this opinion. I think on the next level, because what ha what's happening here is Cahill is keeping this very closed, a very closed universe. He's not, he's not looking into juror 52. He's not looking into Maxine waters or the settlement agreement or the, of not changing venue. He's not looking at any of that. He's just saying, okay, listen, here's what we got. We got a trial. We're going to close this universe. And we know that the jury came back and this is what they said happened. There's enough evidence that we can convict him on all three counts. And that's it. The judge is basically stopping there. The inquiry is not going any further. So based on that information, juror number 52, Brandon Mitchell, any mistrial appeals post-conviction relief, any of that stuff, it's a whole separate issue. We're just talking about somebody Derek Shovan or any other defendant was convicted on three counts. We know what the charges are. We know that there are these aggravating factors. That's all that the judges answering here that we're going to get more information about the other stuff later. I really don't think you should read anything into it. Um, in particular, because that's, I just don't get that from Cahill. I don't think that that he would be trying to slide in a hint there. I really think that he wants to be done with this and let the court of appeals deal with it. We have Sharon Quinny in the house says, wait a minute here. I don't think Shovan got a fair trial. So how does this work? When do

Speaker 3: 27:40

They get to a new trial?

Speaker 1: 27:43

Well, they got to appeal it, right? They've got to find a basis for the new trial. They have to, you know, take it up and the court would have to remanned it for a new trial. They're not just going to give him a second shot at it. He's got, he's got a pretty big hurdle in convincing the courts that that is necessary because as far as Cahill, in my opinion, he's going to come back out and say, Nope, it's all good. Everything went fine here. And if you've got a problem with that, take it up to the next level. LT 13 says if I were a police officer, I wouldn't arrest anyone, chase anyone or get involved in any medical emergency. One bad angle viral video in your life is over. Yeah, I know, man. I know when we sorta talked to, uh, officer Tatum about that here on YouTube, I think a week, a week or two ago, and he's, you know, officers are feeling depressed. You know, there's nobody police went from being sort of this heroic profession where everything that a cop did was saving America to this. Now every single cop who even looks at you as a racist, Neo Nazi or something, you know, and that doesn't neither one of those made sense to me. But I agree, right? If you're in a profession that nobody appreciates the work that you do find a different profession. I know it's easier to say that than it is to really do that. But long-term, I'm talking 20 years from now, 30 years from now, right? Why would little Johnny who 20 years ago said, I want to be a police officer, mommy, and I want to go save and protect and serve and protect my community. Well, now little Johnny is growing up and he's looking around and nobody wants to be a police officer. They are sort of

Speaker 3: 29:07

Worst sort of public servant, right?

Speaker 1: 29:11

That exists right now. Everybody's angry at them, not me, but a lot of other people are. And they're just sort of on the receiving end of a brunt of a lot of pent up anger in America. And I don't think fairly, quite frankly, you know, I don't think that the police are responsible for every single racial infraction that's ever happened in this country, but there are certain contingents on the other side that want to make it about that. And they have said so that they need to defund the entire police because it is part of systemic racism that is inherently intertwined with the founding of America. And I'm not making that up. That's on BLM demands on their own website. So you can go take a look at that. We have, Oh, Sox 71 in the house says, Rob, big fan, I'm a big fan of UO sock. So do you think that Shovan mitigating will offset offset his aggravation in sentencing? Well, no I don't because the judge already just came out. So I think I was a little bit inartful on that the judge has weighed everything and came out on and made a decision. So we now know that four out of the five aggravating factors are on the record. The judge found that those did exist. So the judge would have weighed everything and come back. And this is the ultimate conclusion. We have ghost gunner in the house. What's up ghost gunner says, what are the chances? This gets appealed based on all the things that could have been corrupted the jury along with a clearly biased juror. So I think a a hundred percent, if I had to say, uh, you know, it, it, it is going to be appealed. There will be many, many appeals and probably several appeals and post-conviction relief. I mean, the litigation component of this is not over by any stretch of the imagination. And I think for good reason, because there, there are a lot of issues that took place here. And we've talked about that a lot. Uh, you know, we've had, uh, Viva and barns on and other people sort of beaten the Shovan issues to death, but there were a lot of them that I think justify further inquiry for sure. Uh, next up we've got, additionally, do you think the judge Cahill might be irritated with him being named in the appeal and taking it out on Shovan by enforcing the aggravated factors? Ooh, that's a, that's a very interesting observation there. I'd like to think he's not, he seemed fair during the trial. Yeah. I, I think I agree with you, you know, I've, I've been in enough courtrooms that you can sort of tell certain judges, they get seasoned enough that they sort of, nothing really bothers them. And I got that sense from Cahill. You could just sort of see by the way that he carried himself, that there were, there were, there was not much that was going to flap him. He was unflappable. There was one situation where he scolded the, um, Genevieve Hanson. I think the firefighter kind of scolded her, but it wasn't, you know, he never lost his cool. It was like, all right, I'm a judge. I got to scold this witness because she's not behaving. Let me turn this on for a minute. Put the, put the angry judge hat on. All right. Put the angry judge hat on. Now I'm an angry judge. All right, right. And then take the hat off, go back, whatever. Right. It doesn't even matter because you've been doing it for 45 years. It's like just, you know, changing, refilling your cup of coffee. That's how routine it is for judges. And that's the same sort of observation that I got from Cahill. I did not think that he was somebody who took almost anything personally, you know, he just kind of wanted to run an even keeled courtroom. I think that Nelson could come out and say Cahill was the biggest, awful, most biggest, you know, piece of garbage judge you'd ever seen okay. Is going to go, well, it's fine. I've been called that for the last 30 years. So whatever. And I just don't, I just don't think when you've been doing it for that long, that it is as personal as it might look. Right. And, and, and, and, and you're making a good point here, ghost gunner that, that you would, you, you could easily expect beings to act like human beings. And that includes judges. And there are many instances when judges do do that. When judges, I know judges here in Arizona, I go, Oh gosh, you know, we do not want to be in sentencing in front of this judge because this judge is just not, you know, it's not friendly for you or your demographic or whatever, but I just didn't get that from Cahill. And I know that

Speaker 3: 32:57

That is kind of speculative and, uh, not really based in much other than my gut instinct, but that's all

Speaker 1: 33:08

We have. No doubt says after watching the complete trial, the prosecution did not prove he was guilty of any of the murder charges beyond a reasonable doubt. However, I did find him guilty of cruel and unusual punishment though. He wasn't charged with that. We need a set of laws that deal with official oppression rather than just a broad category that police officers and other government officials are

Speaker 3: 33:27

Subject to. Yeah.

Speaker 1: 33:30

You know, so what you're kind of talking about there, no doubt are lesser included offenses and the government didn't include anything less, right. Strategically, because they wanted to make sure that they got convictions on the murder charges. If they would have included some of those lesser offenses. The theory from a prosecution

Speaker 3: 33:46

Perspective is that they

Speaker 1: 33:49

Giving the jurors an option of picking something less. They don't want to give them that option. They want to convict on the most serious charges. What's up Liberty or death in the house as hopefully the public doesn't see this for the three, for the other three officers. First, the DOJ broadcast. They have been indicted. Now they were part of a group that killed Floyd. Do you think the judge will grant a change of venue for the other three? Uh, it's hard to, it's hard to say yes. Right? What if they do?

Speaker 3: 34:16

I don't think so.

Speaker 1: 34:17

I think they have to say no, because if they do change venue, well, why didn't they do it for Shovan then? Which was obviously the bigger

Speaker 3: 34:24

Case. So I think as a matter of consistency, they can't change venue. Now they got it. Nope.

Speaker 1: 34:30

Fine to do it here in Minneapolis. When we did it with Shovan, it's going to be fine to do it with the other officers.

Speaker 3: 34:37

Otherwise, if they say,

Speaker 1: 34:38

Oh my gosh. Yeah, that was a disaster. Yeah. We held Chauvin's trial. He was a frigging nightmare. We had Maxine waters coming in here, throwing gas, lighting buildings on fire,

Speaker 3: 34:47

That she did that. And then we're going to change it. All you do is there.

Speaker 1: 34:51

And at that point, it's an open the door for Eric Nelson to come in and say, see, we told you so jerks. We told you we needed to move this thing. You didn't do it now. You're doing it. You should have done it for Shovan. Now I'm asking you to do it so that we can have a new trial that is in fact fair and impartial. Just, that would be my instinct on it. Jeremy Murrieta says nothing about this trial was based. In fact, I have no faith in our current justice system.

Speaker 3: 35:11

Oh, I know. To what end does this meet? Bye

Speaker 1: 35:15

Crucifying for police officer, to what end does this mean by crucifying for police officers for doing their job? Well, Jeremy, it makes a certain segment of this country feel good. I think that's all it does. I mean, I don't know what else it does because it's not going to change anything in the, in the justice system. What's Minneapolis going to do, they're going to defund the police by 8 million. Then they bring it back. I think another 6 million, we just talked to a law

Speaker 4: 35:38

Here on Monday night. And he's saying that some of the external police departments are just not gonna go in and support some of the inner city police departments and that there's this sort of division that's going on. So is justice improving. We're talking about defunding. The police now is the George Floyd bill going to pass. It doesn't do anything for anything. We've gone through that bill. So what's going to happen here. We're going to have four officers who just go to cut, go, go to prison and go to custody. And we're going to have a family that gets 27 million. You're going to have a lot of people that make a lot of money and make names for themselves by starting podcasts and writing books and, you know, fighting for some sort of, cause that doesn't really do much of anything. We went through the demands that BLM has, what are they? They want Donald Trump off the internet and they want to defund the police. So, okay. So they've got a lot of momentum here as a result of this Shovan verdict. What are they going to put it to? What, what, what is going to go to good use for anything I read through the seven demands on the show. I can't see anything. That's going to be useful for real justice reform in this country other than defunding the police. So they want no police. That's a good

Speaker 2: 36:39

Starting point. So what's going to happen.

Speaker 4: 36:41

Nothing, but a lot of people in the media are happy about this. A lot of people just kind of got that. You know, it's kind of like the Coliseum. I mean really when you think about it back in the Roman days, you know, we used to have, uh, over there in Rome, they used to have these battles where there people would go, gladiators were, go in lions, tigers, bears, Oh my. And they would kill each other. It would be public sport because people wanted blood. They didn't like their lives. They didn't like what they've been being told. They don't like this idea that, you know, America is a certain way. And so they want blood now. And how are they going to get it? Well, it's going to come out of the court of law. It's going to come out of Derek Shovan and these four officers, because where else can it come from? It's not going to come from our politicians. We've had the same stinking politicians, my entire time, practicing law, promising us all these changes. Oh, we're going to improve this and improve this. And we need a committee and we need a, a research team over here and we're going to go talk and do some community policing and go interface with the little people down there that were patrolling. All right. Anything changed? No. Any real meaningful reforms across any part of the country? Not that I have seen truly. I mean, it's, it's more of the same crap. Every time the police kill some black kid, it's the same garbage the mayor stand up. The governor, stand up, all the senators, stand up. They

Speaker 2: 37:50

Go up. This is just awful.

Speaker 4: 37:52

We're better than this. We can do more in America to stop this from happening. And then what happens? Nothing happens. Nothing. We have a trial cops go to jail and it's just status quo. Moving forward, Joe Biden comes out, addresses the country, talks about it for like 15 seconds and then mentioned the past the George Floyd bill. That's it right? W w are we expecting anything from him? No, he's got 30 years of criminal justice, uh, ear reform of slamming people behind bars and throwing them in custody for 30 years. And his VP is Kamala Harris. So somehow some segment of this country thought that these two knuckleheads were going to be the saviors of our justice system. Give me a break. It could not be possibly worse, but still they are getting a lot of the benefits because they have everybody in their, they've got all the media,

Speaker 1: 38:36

All of the politicians, but he wants to stand up for any of this stuff. And what happens? The people suffer. Government does fine. Everybody else who's on the receiving end of you know, bad policing. And now rioting, we're all suffering the consequences because the police aren't going to want to go in and clean up the streets. And we kind of need them to do that now, because if they're not doing it, who's going to handle it. BLM. Thank you for that. Jeremy, Joe, snow is next. We've got listen. I don't know where I am or what position I'm being detained in. If I'm in handcuffs and I tell the police, I can't breathe. I need medical. Yeah, I, yes. Yeah. So did, so did George Floyd, evidently we have Sharon Quinn and he says, how can a law enforcement officer be held responsible for the presence of children? Should they change their tactics? Just because kids can see what's going on and where were the parents doesn't make any sense to me at all? Yeah. So that is, is, uh, it is interesting, right? Because these are aggravating factors that are usually for defendants, right? This is usually for, you know, the guy who's beating his wife in front of his kids, in their apartment building. That's what, that's what this is for. It's not for an officer arresting somebody and three other cops were there. It doesn't, it, it, it, they're, they're sort of not written for that. Alright, we have a next step. We've got Liberty or deaths as pretend this happened in a Z and you were counselor, what is the procedure that you would follow? And your next steps, uh, while sentencing is, is what we would be doing. So in Arizona, the way that this would work is we have sentencing. So Shovan would be going over and he would be going and having what's called a pre a pre-sentencing report that would be done here by the Maricopa County probation department, essentially. And they would be sitting down with him and they would be doing an interview with him. Uh, at this point in time, we'd also be working with a mitigation specialist. Somebody that is only focused on mitigation that probably would have started a long time ago, but they would also be working on the case. Uh, we would be preparing to go down and be there a part of the pre-sentence interview. Uh, we probably have a sentencing, uh, court date that would be scheduled and, uh, very, very unlikely that there would be sentencing that would take place at that time. What we would probably want to do is go there and then have a, probably a meeting in chambers with the court, probably what they're going to do here. In this case, talk to the judge, talk to the prosecution, talk to the probation department, figure out kind of what everybody's asking for when it comes to sentencing. So here's the way that it works. You'll have the defense is going to come out and make their offer. The prosecution is going to make their offer. And then you're going to have sort of, you know, what's supposed to be an impartial, unbiased analysis that is typically done by a third party in this case, it's the court or it's the probation department or an extension of the court that is more under their arm, not the prosecution's arm. So you're going to have three different reports, kind of coming in they're skidding in their sentencing record, uh, recommendations. And so on. All of those come skidding in once they're all prepared at the sentencing court date, you're probably not going to sentence on that date because you're just going to be getting a lot of this information. So you're going to ask for a continuance or an extension or what we call them, our hearings further down the road. Then you can sort of reconvene come back and have a powerful sentencing bring in everybody. Right. And if you're Derek Shovan at this case, you're bringing in everybody, wife, kids, family, every single human being to come in and talk about, you know, what a great person he is, other fellow officers, uh, and you try to cram in as much as you humanly can for the courts. So that's, that's what we would be preparing for. Uh, also I don't do appeals truly. So we would be working with an appeals attorney and a post-conviction relief attorney. I mean, I, I don't do the appeals. We do, we do that here at the firm, but I don't personally do them or have much experience with them. That is, uh, that's where the people who love to write and read and research and just read and read and read and write and write and write and write. And, um, I don't have, uh, I I'm well capable of doing that. I just prefer to come rent here on YouTube. So it's a good question. Liberty. There's a lot going on there. We have next up last one on this segment comes from software nuggets as Shovan is definitely innocent. The prosecution didn't make their case, but a lot of people think

Speaker 4: 42:36

That you're a horrible person for thinking that,

Speaker 1: 42:38

But Shovan was simply doing his job. Yeah. And, you know, software nugget, uh, my perspective on this has always been that the beyond a reasonable doubt standard just wasn't met. I think that there was plenty of reasonable doubt in this case. I am not endorsing anything that Shovan did. Right.

Speaker 4: 42:54

I've said for a long time, I agree with the witness who called him a punk. I think he is a punk. I've seen many officers

Speaker 1: 42:59

This who just think that they have unlimited power and that they can go do whatever they want. I'm not excusing anything that Shovan did.

Speaker 4: 43:06

Government still has to meet their burden and they got to prove him guilty beyond a reasonable doubt. And when I looked at the case,

Speaker 1: 43:12

No methamphetamines drug, uh, last minute drug ingestion at the scene, hypothetically, we've also got the 2019 case where his blood pressure was like two 16 over one 60 something insane. And the list goes on and on plenty of reasonable doubt, the government's own witnesses said that if they would have walked into his apartment and found him dead, they could have attributed

Speaker 4: 43:31

To a number of different causes. Either the fentanyl independently by itself could have done it, or his heart condition could have done it. 90% clogged arteries out of his arterial, sclerosis and hypertension.

Speaker 1: 43:42

Plenty of reasonable doubt there. All right. Great questions. Thank you so much for those, those all came over

Speaker 4: 43:48

Or from watching the watchers.locals.com and we really appreciate it,

Speaker 1: 43:51

Your support. We've got a lot of good events coming up over there, and I'm excited about that platform and where it's going. So thanks for supporting us over there. All right. So we are now going to change gears and we have to talk about it. The N word is something we have to talk about today. Not the actual word, just the N word brace yourselves. Now this is a touchy subject, right? This is a complicated area of the law because it invokes a lot of emotion. Anytime you hear that word, you go, Oh my gosh, that is the worst word in the English language. And it needs to be eradicated from our, our vocabulary. And I don't disagree with that, but unfortunately, some people still use it. And there are some that are

Speaker 4: 44:32

In existence in America that make that type of language criminal. And so the question we have to ask ourselves is, is that in fact criminal, is it a crime then too, to call somebody that, or to use that word, to use the N word? And you know, this reminded me when I was thinking about this segment that I have to do on here. I'm thinking, Oh gosh, there was a Louis CK clip. And I know, you know, after his whole me too movement thing, but he still had a great joke talking about that, the N word, right? And he, he doesn't use it either and nobody should. But he says specifically the people who say that they are total jerks, because they're making you think the word

Speaker 2: 45:07

In your head every time they say the N words,

Speaker 4: 45:10

I apologize in advance for that. But I just don't know how else to cover this because here's the headline. It says federal court saying the N word to two black people does not qualify it as fighting words. What?

Speaker 2: 45:22

Cause it kinda sounds like it might story, right?

Speaker 4: 45:25

It was posted over@lawandcrime.com from Colin. Comebacker says flinging. The N word does not necessarily fall under the fighting words. Exception to the first amendment federal court found on Tuesday case is us vs Bartow us court of appeals for circuit opine that the N word is an ugly racial epithet and a highly offensive slur that undoubtedly constitutes extremely abusive language, but determined that the

Speaker 2: 45:49

Slur can not broadly be criminalized

Speaker 4: 45:52

Under the nation's current free speech

Speaker 2: 45:55

Regime

Speaker 4: 45:58

K centers on retired air force, Lieutenant Juul, Barto who was convicted under Virginia's abusive language statute for a series of increasingly offensive rhetorical questions that came to include the N-word. As he was talking with a sales associate while shopping for boots at Quantico Marine Corps

Speaker 2: 46:14

Change Bartow is white. Okay. The person

Speaker 4: 46:18

Who is being charged with a crime here, these sales associate, he was intent on verbally upsetting Kathy Johnson. Felder is black. So we have a retired United States air force. Lieutenant goes into a store, wants to buy some boots, gets into it with a woman named Kathy and starts to use some language. And then eventually in this conversation, the N word comes out and now cops come, he is arrested and charged with a crime he's actually charged with, with a Virginia abusive language statute violation. And he takes this up, right? He says, no, you can't do that. I have free speech in this country. I'm allowed to use that language. If I want to. Government says, no, hold on a minute, you have free speech, certainly, but not fighting words. You know, you can't just go up to somebody and start lobbying insults in their face, sort of intending to provoke an attack out of them. And then when they attack, you say, but my free speech, that's not how that works. Right? We know that as people, that words can be extremely volatile and very provocative and encourage people to respond accordingly. So the Supreme court has said, well, free speech. Doesn't apply to that. You can't go out, you know, walk up to somebody, say your mother and expect them to not respond. So that is being carved out. But what about this case? What about the N word? That is I, if there are any fighting words out there, that's one of them, right? Di Diana Gribbon Motz

Speaker 1: 47:33

The circuit judge drafts. This opinion says Juul is Bartelle. So this is the army Lieutenant

Speaker 4: 47:41

Challenges, his conviction for using abusive language in violation of Virginia law. The first amendment permits criminalization of

Speaker 1: 47:48

Abusive language, but only if the government proves the language, right.

Speaker 4: 47:53

Had a direct tendency to cause immediate acts of violence by the person to whom individually

Speaker 1: 48:00

It was addressed. Okay. So to whom individually, it was addressed the direct tendency. So if I'm going to say that to you, does it have,

Speaker 4: 48:10

Have the direct tendency to cause you not a random person, you, the person I'm addressing it to, to engage in immediate acts of violence, the ugly racial epithet used by Bartelle undoubtedly constitute extremely abusive language, right? Part of the

Speaker 1: 48:26

Not legal language, but because

Speaker 4: 48:28

The government failed to prove, or even to offer evidence that Bartell's use of highly offensive slur tended to cause immediate acts of violence by anyone, his conviction cannot stand. So you see what they did. They're just taking this. They're saying abusive language

Speaker 1: 48:42

Is not permitted. If it causes

Speaker 4: 48:44

Immediate acts of violence against, by the person to whom it was addressed. So immediate acts of violence, they didn't prove that in this case. So they're saying, yeah, I mean, it was extremely abusive. It's the N word, it's a terrible word, but they can't show that this would have caused the woman Kathy, to respond with immediate acts of violence. And so, because the government didn't prove that they're going to send this back down to the lower court, to vacate Bartell's conviction and sentence. So he's not going to be, he was convicted of this,

Speaker 1: 49:12

Right? He was found guilty of using abusive language by using that word. And now they're saying, Nope, vacated

Speaker 4: 49:20

Conviction has been thrown out because

Speaker 1: 49:23

It can't be illegal because there's no way.

Speaker 4: 49:26

I didn't know that there was any immediate acts of violence by the person to whom the word has was said. So this all happened. Interesting story. This all happened back in November, 2018, retired air force, Lieutenant Colonel Juul, barred out who is, who is white entered Quantico Marine Corps exchange to shop for boots. The entirety of evidence offered by the government to prove its case against Bartelle consisted of a store camera video without

Speaker 1: 49:50

Audio does a bummer of

Speaker 4: 49:52

The short encounter at issue here in the testimony of two store employees, as their record as to their recollection of the events, the video lacks audio and individuals move in and out of the frame, it is not possible to determine from the video when Bardel was talking or to whom he was looking at when he did speak for these reasons, the government has primarily relied on the testimony of

Speaker 1: 50:09

Its two trial witnesses.

Speaker 4: 50:12

So he's in the store, cameras running, but it's not capturing any audio, which is pretty important. So bar Dow co goes in first employee, Kathy Johnson, Felder, who's African

Speaker 1: 50:21

American testifies that she approached Bardot and says, good morning, may I help you? And so all this stuff must

Speaker 4: 50:28

Be coming from the trial record, right there, going back and said, Hey, there was a trial here.

Speaker 3: 50:32

What happened? Trial went

Speaker 4: 50:34

Through. She comes in and testify. So the court of appeals is just looking at the lower level record and saying, okay, well, this is what they said happened. So this is all information that's under oath. And now we can analyze it. Bardell says, uh, the Kathy says to Bardot, good morning, may I help you? Bardell response. If I had indigestion diarrhea or a headache, would you still still address me as good morning? Strange thing to say. When you walk into a store, Bardell raised his voice to Kathy who frozen shock Kathy, again, as barred up. Can I help you, sir? He responded. I'm not a sir. I'm not a male. I'm not a female. If I had a vagina, would you still call me, sir,

Speaker 3: 51:11

Barred out

Speaker 4: 51:12

Gestured and pointed his finger several times at Kathy, who was a number of steps away from him. She was taken aback. Bardell raised his voice. It drew onlookers, including a white uniform Marine Lieutenant Colonel. The Lieutenant Colonel began a conversation with Bardel during which both men gestured at one another with pointed fingers. Bardot continued to try on boots throughout this exchange, as did Lieutenant Colonel, as the discussion continued a few more people gathered around, including an African-American man in civilian clothes, Kathy, the store clerk related that the civilian explained to Bardot that the re the reason that the employee at that exchange say, you know, sir, or ma'am is because you're purchasing merchandise on a military

Speaker 3: 51:50

Installation, right? Like that you're on a middle

Speaker 4: 51:53

Terry Bay. So when you go in and buy a store, buy an item, they welcome in sir. Welcome in ma'am good evening,

Speaker 3: 51:58

Sir. Good evening, man. So if somebody goes

Speaker 4: 52:01

Over there and explains that to bartend,

Speaker 3: 52:03

Hey, don't give her any grief. What are you talking about? Join the military

Speaker 4: 52:09

Installation. Of course we talked that way. You know, that Bardo the response.

Speaker 3: 52:13

It says if I called her eight, mm, an N word, if I called

Speaker 4: 52:20

Her an N word, would she still say, good morning?

Speaker 3: 52:23

Whoa. So we see where this is going. Okay. So Bardo is just angry.

Speaker 4: 52:30

Trying to get a rise out of somebody. Kathy's testimony is unclear as to whether she believed this slur was directed to her or to the African-American man in civilian clothes.

Speaker 3: 52:42

Right?

Speaker 4: 52:44

We got a little bit of a problem here. We've got one speaker, we've got two recipients. And we don't know which, which recipient

Speaker 3: 52:50

That, that, that language was directed to. In any

Speaker 4: 52:56

Event, Kathy, the store clerk who remained several feet away from Bartelle asked another employee to call over. Vicky, heard his store security officer heard the only other witness called by the government at trial testified that she was asked to go to the area where shoes were sold to address loud noises and people arguing when she did. So she also encountered BARDA on the floor trying on shoes and a white Lieutenant Colonel standing over Bardot and art arguing with him heard, could not recall exactly what Bardot was saying, but she testified that she did not hear him use the N word. She did observe quite a heated conversation between Bartelle and the white Lieutenant Colonel, who was very animated and pointed his finger at Bardot, heard, moved between the two and told Bardot to put on his shoes and leave the store. She escorted Bardot out and base security officers arrested him. Bardot pled, not guilty to violating Virginia code case proceeded to trial before judge following the presentation of the evidence set forth above the magistrate concluded that Bartell quote, directed the slur at an African-American man who was talking to him. The judge did make, did not make any findings as to whether the African-American man was in fact likely spurred to immediate violence. Okay. And that's the standard. When, when you receive that conversation, that communication are you likely spurred to immediate violence. So the court, the judge didn't say anything about that, or as to the likelihood of such a response from an individual in the man's position, the magistrate found Bardot guilty finding$500, the maximum penalty under the statute. So it sounds here that they're, they're, they're actually making this more like an objective test. So, you know, so there's kind of two different ways to analyze this. And I don't, I don't practice law in Virginia, so I don't know, but, uh, the, the two different ways of interpreting this right. One would be that this is a subjective standard. So the idea is that the person to whom you're directing the, with that, it matters whether they would respond with immediate violence. Okay. They specifically that person, if you're threatening me, you say, would Robert ruler be prompted to action to immediately violence me specifically? Or that's a subjective standard, because we want to know about me individually versus an objective standard would a reasonable person in that person's position, not Robert ruler specifically, but somebody in my position, let's say, you know, uh, a 35 year old attorney in Scottsdale, Arizona, what a 35, I have your old attorney in Scottsdale, Arizona. Who's a white guy who was unmarried, whatever. If somebody uses an epithet towards him, would it, would it prompt that person who is a reasonable person who is not Robert ruler, but somebody like him to respond with immediate violence to distinction between the two types here. And so I don't, this is making it sound like more like it's objective. You can see that because it says whether the man was in fact whether the African-American man himself was in fact, right. Whether he was, or whether the likelihood of a, such a response from another individual in that man's position. So we don't know, uh, because it doesn't, it doesn't really matter because the judge didn't find it either way. Judge, didn't say it doesn't matter. D don't know about that guy. And don't know about a reasonable person got either. Cause didn't even analyze it. The magistrate found out guilty, find him$500. The maximum penalty on appeal, the district court affirmed the court did not discuss to whom barred out directed the epithet. The court seemed to rely on the apparent friction between the white Lieutenant Colonel and Bardo as the basis for concluding that the use of the N word elicited quote, an impending breach of the peace. So Bardo appealed and he won right.

Speaker 3: 56:24

Court said, no, it doesn't doesn't doesn't count. He's allowed to say that, right?

Speaker 4: 56:28

Because we don't know to whom it was directed and whether or not that would have prompted immediate violent action. Let's take a look at the opinions, justification and rationale. We're not going to go through this whole thing, but it says here, the Virginia code that he violated was this is it specifically

Speaker 3: 56:43

Says if

Speaker 4: 56:45

Any person shall in the presence of hearing of another, in the presence or hearing of another curse or abuse such

Speaker 3: 56:53

Other person, or use

Speaker 4: 56:56

Any violent, abusive language to such person concerning himself or any of his relations or otherwise use such language under circumstances, reasonably calculated to provoke a breach of the peace. He shall be guilty of a class three misdemeanor, okay. Reasonably calculated to provoke a breach of the proof of the peace, violent, abusive language. Supreme court of Virginia has limited that to abusive language that has a direct tendency to cause acts of violence by the person to whom individually the language is addressed. And they are going back to a Virginia Supreme court case, right? So that makes it sound like it is a subjective test as such the statute, only criminalize criminalizes, personal face-to-face abusive and insulting language likely to provoke a violent reaction and retaliation, right? And that makes sense. This is different, right then than instant messaging somebody, or then text messaging. Somebody, if you call somebody whatever over a text message, is that going to provoke immediate violence,

Speaker 3: 57:51

Maybe, but less likely than it would be if you were in their face, right? Because there's a proximity

Speaker 4: 57:58

Problem. They're there in your face. You don't want them there anymore. What's one way to do that and wants to get physical. So if you're in person, it sort of increases the stakes a little bit. And the Supreme court said that that is part of the requirement. Of course, that was applicable here. This narrow construction they have recognized is required to harmonize the statute with the first Amendment's guarantee of free speech. So we're balancing some interests. First amendment also surprised provides that Congress shall make no law. Abridging free speech. Government has no power to restrict expression because of its message, its ideas, its subject matter. Or its content comes from a us Supreme court case out of 1972. And they're going to go through a history there we've got in 1942, we have another us Supreme court case called chapel Lynskey. The court defined fighting words as words that quote by their very utterance, inflict injury, or tend to incite an immediate breach of peace Cielensky court concluded that resort to epithets or personal abuse is not in any proper sense, communication of information or opinion that is safeguarded by the constitution. So it may be punishable as a criminal act. If this remained the Supreme court's teaching on the contours of fighting words, bark towns apparent slaughter would undoubted, uh, her abhorrent slur, excuse me, what undoubtedly constitute a fighting word punishable as a criminal act. But in the decades, since champ Lynskey, the court imposed a number of limitations on the fighting words, exceptions first, the court effectively eliminated the injury prong of fighting words. The government may only criminally prosecute a fighting word speech shown likely to produce a clear and present danger of serious substantive, evil that rises above inconvenience. Right? And so what the Supreme court did is they said, yep, you know, fighting words are not protected. Can't do that. And then what happened after that is they have a series of cases that came out after that, that says, well, that, that one's protected and that one's protected. And we're going to loosen the standard a little bit. You can see here that they said that

Speaker 3: 59:54

Only that which has

Speaker 4: 59:56

A direct tendency to cause acts of violence. We have number three, they explained that these small class of fighting words is limited to direct personal insults. Only directed to the person of the hearer. Okay. Actually, or likely to be present. So it's not something that is sort of out there in the open, right? I, I hate, you know, all certain types of this person or whatever. It's directed to somebody specifically. Why? Because we want to prevent the causation of immediate violence. If you're just saying, well, I don't like bananas out there, generally speaking. Well, a lot of people don't like bananas, but is that banana right? They're going to be mad about that.

Speaker 3: 1:00:35

Likely to peel himself and go into a frenzy maybe.

Speaker 4: 1:00:40

But if you direct it directly to that one specific banana and you say, you taste terrible. Well, he's going to flip out and jump out of his peel. And then we're all going to have to deal with the consequences without evidence of direct post personal insult. The court has determined the government may not obtain a conviction for fighting words, evidence of a direct personal insult. Okay. So you see that. So the standard is tightening up a little bit. They're they're, they're saying that fighting words are generally excluded and then they're bringing them all back in because that was too broad. It was too much of an exclusion, too much free speech was getting caught up in that lower standard. So they needed to raise the standard. Well, we're going to protect that. We're going to protect that. We're going to protect that and let's continue on Virginia code requires proof of the abusive language

Speaker 3: 1:01:26

That we have.

Speaker 4: 1:01:26

It's hard. Yeah. They say here, it is hard to think of an English term that is more apparent.

Speaker 3: 1:01:32

And we have

Speaker 4: 1:01:33

Some, some different citations here. The N word is the most noxious racial epithet in contemporary American lexicon.

Speaker 3: 1:01:42

The vial

Speaker 4: 1:01:43

Epithet has a unique power to offend an insult and belittle. It is so loaded with a legacy of slavery and racial hatred that is inextricably linked with prejudice and hostility towards African-Americans. And they're going straight to the Oxford English dictionary and they got the word written in there. We have here. It says all the bitter years and insult of America, no other word in the English language. So powerfully or instantly calls to mind. Our country's long and brutal struggle to overcome racism and discrimination against African-Americans. But the Virginia statute does not and could not consistent with the first amendment criminalized. The mere statement of this word, the government recognizes even the most egregious racial slur is not a fighting word per se. The circumstances in which the word is used matter a great deal. So they go through, they explain it and they say, well, based on this, the government maintains that barred out, address the slur to both Kathy and the African-American man in civilian clothes. But the judge found the Bardo directed the slur

Speaker 3: 1:02:43

At the African-American man district court did not

Speaker 4: 1:02:46

State to whom it believed the slur was addressed, but it seemed to base it on the reaction of the white Lieutenant Colonel to Bardot parties. Agree. However that he was not barred. I was a dressy. So nobody knows who he is.

Speaker 3: 1:02:55

I was talking to seemed, uh, seemed kind of obvious to me, right? He said, well, what if I called her that? But he wasn't actually talking to her. He was talking to the other guy, everything about bars.

Speaker 4: 1:03:08

Those remarks was offensive and bizarre. The court said their meaning was difficult to discern.

Speaker 3: 1:03:14

Bardel suggests

Speaker 4: 1:03:14

In his briefs that his remarks reflect his discomfort with gender labels and sex stereotypes.

Speaker 3: 1:03:19

Oh, he maintains

Speaker 4: 1:03:21

It. He uses slur because just like it can be offensive and degrading to be called the N word. It can be degrading, humiliating and validating and mentally devastating for a transgender person to be mis-gendered to be

Speaker 3: 1:03:34

Sir, when they are not male or ma'am when they are not female. Oh, another piece of the puzzle comes into play doesn't it

Speaker 4: 1:03:42

W everything about Bardos remarks were offensive and bizarre. Their meaning was difficult to discern. Although now rare criminal convictions for the use of fighting words still are possible, but they require the prosecution offer compelling evidence that meets all limitations

Speaker 3: 1:03:56

On the fighting words doctrine. See what else we have here. Government offered no similar evidence here for the foregoing

Speaker 4: 1:04:04

Reasons. We reverse

Speaker 3: 1:04:07

The judgment of the district court and remand the case to vacate Bartell's conviction and sentence insulation.

Speaker 4: 1:04:14

And the government has not proven the use of the vial slur was likely to revoke a violent reaction by the person to whom individually it was addressed. The government is not proven that the slur was used as a direct personal insult under Johnson. The government has not proven that the actual circumstances of the use of the slur or particularly conducive to violence, this total lack of evidence requires us to vacate Bardos conviction. So probably the right move on that. Right. But it's a,

Speaker 3: 1:04:41

It's a gray line that on that one, but the right call, err, on the side of free speech, not over-criminalization I think it was the right move. Good call for circuit. We have some questions coming in from watching the watchers.locals.com. Keep it perfect.

Speaker 4: 1:05:01

National here. Folks. John Diller, 52 says black people use the N word more than whites. What are they going to do? Just use a law against white people when black people say it's too offensive, but no one cares. Oh, that's a good point. Right. And so how do you

Speaker 3: 1:05:13

Sort of apply that? So this is a great

Speaker 4: 1:05:15

Question that the Supreme court is having to, to flesh out. Right? What if somebody just says it generally speaking, right. Is that hate speech? Is that a hate crime? Is that something that warrants a criminal charge? Most of us would say no, but a lot of people would say yes, absolutely. Right. We have a huge segment of this country

Speaker 2: 1:05:33

That thinks that basically, you know, waking up, you are a white,

Speaker 4: 1:05:38

The premesis we've seen that. We've talked about it. We've actually shown the documents that have come out of some of these critical race theorists that just say, well, if you are a white person, you are a part of the problem for everything that you do eat. Don test is in the house. As I agree, the N word is an ugly word, but there are other racial slurs for other races that justify a violent response. Maybe there is, I don't know, can you call someone of Asian descent by name that counts as fighting words? So yes, I think you can. I mean, I don't think that, that this court case is saying that the N word is not fighting words, right? That's not what they're saying at all. They're saying that it absolutely could be fighting words, but it needs to be used appropriately or inappropriately. It needs to be directed in a certain manner. That would cause somebody to respond violently. And because in this case it was not according to the lower courts findings. So remember the court of appeals in this case, they're not going back and doing a new trial. They're just saying, Hey, you guys did a trial. Let me, let me just read through what happened in there. All right. I'm flipping through here. Judge did this, uh, cross examination.

Speaker 2: 1:06:36

Got it. Did anybody ask about email,

Speaker 4: 1:06:39

The violence? Did anybody ask about who this was directed to because that's required under the law in order for this conviction to stand? Did you do that, judge? No, you didn't. So got to vacate it. And that's why I think it was the right,

Speaker 2: 1:06:51

The right move now under a different set of

Speaker 4: 1:06:54

Facts, right? If, if, if barred out goes in and says directly to Kathy, Hey, you are or something right. Directs it to her in a way that would provoke immediate violence or an immediate response, or even from a reasonable person. And that was on the record in the lower level court proceedings. Then certainly I think this would have gone a different way. It was about the facts of the case. Not about the use of the word we have. Sharon Quinney says, AFM folks, call each other the N word

Speaker 2: 1:07:20

Quite a bit. In fact, my, Oh, uh,

Speaker 4: 1:07:23

In fact my African-American friends have called me

Speaker 2: 1:07:26

An end and I'm white. I guess it depends on the context I totally have. Yeah, absolutely. I'm, you know, I'm pretty, uh, I'm pretty hip.

Speaker 4: 1:07:36

So we've got Nya, renal MD in the house says, why is this law needed? It seems completely subjective. What if the retired Lieutenant Colonel by gender, the black sales woman, well, that's where this is going. This is what that's where this is going. I mean,

Speaker 2: 1:07:50

Hi. I know, I know it's kind of ridiculous, but I know

Speaker 4: 1:07:56

Sharon Whitney says it's an interesting social interaction because for an African-American friend to call me an end, it's actually kind of a compliment. Like you're one of us, right. But to call me a Cracker would be an insult and vice versa. So this is interesting from a sociological linguistic point of view. It is interesting. It is interesting. I, you know, I still think it is sort of a repulsive word,

Speaker 2: 1:08:16

But

Speaker 4: 1:08:16

There are some sort of colloquial ways of using it. The way that I'm thinking about it right now is from curb, your enthusiasm, right. With Larry David and they adopted a family from Corina or whatever the theoretical hypothetical hurricane was on the show and the family happened to be African-American and their last name was the blacks. And so Larry David adopted the blacks from Corina and, you know, they were, they were using that word all the time on the show and it was a word of a reverence, you know, they were sort of, uh, having, having fun with it. And, you know, when I, uh, was the slowest kid on my high school football team who was also a running back. Yeah. I mean, you know, the, the, the faster kids who would smoke me off the starting line, you know, they, we had, we had a relationship and, you know, they, they, they gave me props for trying my very best as that very slow white kid on the football team, which is why I don't play football. And I wrestle, cause I don't have to run when I'm wrestling. Next up we got Liberty or death says, so was the prosecution arguing that the vast majority of rap music should be?

Speaker 2: 1:09:14

And I don't know. I don't know.

Speaker 4: 1:09:18

Uh, I mean, I guess, I guess right, if the prosecution thinks that just the mere utterance of the word is enough for criminality, without having to prove that there was a causal connection to some sort of immediate harm or immediately

Speaker 2: 1:09:28

Violence, that's their standard. N Y renal MD says, so it

Speaker 4: 1:09:34

Is, there are certain controversial protest in Charlottesville, Virginia. I can recall over network TV, very insulting words and assumptions made over the protest for the maintenance of the civil war statute. It seems like a few people could have been arrested in charge, maybe avoiding the woman who died, the protestors who had a permit were treated very badly by

Speaker 2: 1:09:51

Law enforcement. Yeah. Yeah.

Speaker 4: 1:09:54

I remember I remember the Charlottesville and I remember the, you know, find people hoax and all of that stuff. I get all of that. Uh, you know, a lot, a lot of battle is taking place in the battlefield of language, right? We're seeing this all over the country. People are getting very, very particular about this and we're even seeing it in people's Twitter profiles and stuff. I think I saw a headline today, Instagram. Now, when you sign up for an account, I think they have like 42 different pronouns you can choose from. And we're seeing that this has volatile results. There was the, you know, the, the video, I think from a GameStop store where, you know, a transgender individual, uh, walks into a store, the store clerk calls her, sir. And,

Speaker 2: 1:10:38

Uh, she loses

Speaker 4: 1:10:40

Right. And it causes a scene. And so, you know, people are going to be in these interactions. People are going to use the wrong pronouns. People are going to be highly offended. We're going to see situations like this, where apparently Bardell walks in. I don't know if it's a transgender person or not. That footnote maybe leads me to believe that it is kind of irrelevant, right? Th th the, the question here is about the language that's being used and about whether we can criminalize language, I I'm on the favor of, on the side of not criminalizing language. You can have very grotesque and awful language, but you don't want to criminalize that. Right? We want that out in the open. We want to see who's saying gross, awful things so that we can know not to do business with that person and not to invite them over for dinner and not to be friends with them. If they Harbor those grotesque beliefs in their minds. But if we criminalize everything and we make it so that people will not share their thoughts or ideas, while we're going to have a pretty stagnant country of a bunch of monolithic people who are all part of group thing, all thinking the same way we want some, some variety in this country. Even if it means we have some ugly things that are a part of that variety. We want more people to express themselves. There's going to be some ugliness in that, but we need to see it rather than suppress it. We have underscore shade says, didn't know, you can take someone to court over words. I do not like that word whatsoever, but also what happened to sticks and stones. Now, as your mother told you, sticks and stones may break my bones, but words will never hurt.

Speaker 3: 1:12:01

Just let it roll off your back. Right. That's good.

Speaker 4: 1:12:03

The lesson now words are of course, the subject of lawsuits and courts all the time, right? I mean, we have entire contracts and things that we sign, words are very important. And so they also apply to criminal law, but you just got to make sure that it is in the context of something that is actually criminal and not just somebody speaking out or blowing off some steam or using something that's very gross. Language, gross language is still okay in this country. You're allowed to use racist, awful language for the time being until it's illegal. Currently it's not Chris. John says, doesn't that ruling have the potential to incite violence. Oh gosh. That's true. For example, when a recipient who is aware of the ruling, hears the N word and wants the person saying it to be charged, that's going to cause some incitement. Well, the fourth circuit is probably just going to be lumped in with all of the other mega people who want to wreck America by, by inciting violence. I mean, basically everything is incitement

Speaker 3: 1:12:57

Something to some degree, right?

Speaker 4: 1:13:02

We're all part of the problem. Chris, John, you're part of it too. We have be brave says it's hard to believe that the courts are having to interpret conversations. No words should be illegal. Only socially unacceptable. It's pretty good standard there. You know, I think that, that, that I think that I'm closer in alignment with that standard than some of the other ones. Now, if somebody comes up to your face and is screaming at you in the face of Jura, this, or you're that right? You got to you kind of,

Speaker 3: 1:13:26

You got to draw the line at some point, or at least,

Speaker 4: 1:13:31

You know, if you, if you sort of respond to that person,

Speaker 3: 1:13:34

You shouldn't be charged with a crime. In my opinion, if you settle that, you know, out in the streets,

Speaker 4: 1:13:40

We don't want that. We don't want any violence. We don't want any fighting. We want polite people.

Speaker 3: 1:13:44

Well in this country, no bad words, no racial epithets, love and harmony and unity folks, Joe Biden,

Speaker 4: 1:13:52

President. Okay. Unity America. We just want some

Speaker 3: 1:13:55

More love in our lives. Thanks, Joe.

Speaker 4: 1:13:58

All right. So thank you for those questions over from watching the watchers.locals.com. We got one more segment

Speaker 3: 1:14:05

On the show today

Speaker 4: 1:14:07

And let's get right to it. Amman Arbery and Nick Michaels are back in the news. We've been covering this case for some time. Amman Arbery was shot and killed last year by Greg and Travis McMichael. This story is, has been a very interesting one. If you recall, back when we were originally covering this, there was some question about whether this was sort of being swept under the rug because the Amman Arbery shooting took place long time before these two gentlemen were ultimately charged with crimes. And so we're going to give us a little bit of an update on this case breakdown. What actually happened because they have court today. They had court today and they have court tomorrow. They're scheduled for trial coming up, I think later in the, at the end of the year.

Speaker 2: 1:14:45

But they are also now fleshing

Speaker 4: 1:14:47

Out some motions. They have evidence that they need to get into court or out of court in particular, a big piece of evidence. It's very important for the defense is records of Ahmad Arbery's past. He's got some prior malfeasance in his history. So the defense wants to bring that into court. This was a situation where allegedly a Mont Arbery

Speaker 2: 1:15:06

Was running down the street. The mic mic, mic, excuse me.

Speaker 4: 1:15:11

Michael's are saying that they thought that he was stealing from a house. So they chased him down the street. Gregory McMichael was a former police officer. Travis McMichael was his son. They hop in the back of a car. They see this African-American guy running down the street. So they hop in there in the back of their pickup truck, grabbed their firearms, chase him down. They go down the street, a neighbor by the name of Roddy Brown. I think he comes out and now he is held

Speaker 2: 1:15:34

Being to sort of capture this running, uh, kid

Speaker 4: 1:15:39

Who's running down the street. And so they go down this little bit of a loop de loop, and we covered this extensively on this channel. We had maps and we were diagramming the whole scene and everything. So I would encourage you to go watch those videos if you want to check that out.

Speaker 2: 1:15:51

But what ended up happening is a Mont artery kind of turns around and he's

Speaker 4: 1:15:56

Going back and approaching the guys, uh, McMichael, both Michaels and rotting,

Speaker 2: 1:16:02

And they come into contact

Speaker 4: 1:16:03

With one another and Travis and Michael has a shotgun

Speaker 2: 1:16:06

And Ahmad Arbery sort of comes to him,

Speaker 4: 1:16:10

Right? They come to each other and the shotgun goes off three times, according to Travis, uh, if you're on the other side of this, you say he was shot three times. Travis McMichael shot him multiple times after they sort of chased him down. Now, once this caught wind, th th th th this happened, and it didn't catch when for several months, until it sort of leaked out to the media. And then it turned into this big spectacle. The reason it caught my attention is because it really looked like that. Travis Michael, one of the former officers of a former officer for this particular part of Georgia

Speaker 2: 1:16:43

May have escaped any criminal liable.

Speaker 4: 1:16:45

We had multiple prosecutors look at this case and say that what happened here was self-defense nothing went wrong until the rest of the country saw the footage. And we said, what?

Speaker 2: 1:16:56

That looked like a murder to

Speaker 4: 1:16:57

Me. So let's take a quick look. We're going to go through some background here,

Speaker 2: 1:17:00

And we're going to go over to the AP. They say that a judge asked by the defense to

Speaker 4: 1:17:05

Okay, evidence of a Mont Arbery's past troubles. So attorneys for a white father and son don't. You love that. That's like the first thing we talk about now, the first thing a white father and son charged with chasing and killing them on, Arbery asked the judge Wednesday to allow evidence of the slain black man's past problems to be presented when their clients stand trial for murder. Prosecutors argued that Arbery's criminal record and other prior problems should be kept out of the trial saying they are irrelevant

Speaker 2: 1:17:31

To the defense decision

Speaker 4: 1:17:33

To arm themselves and ultimately shoot a man who was trying to run away. Which I actually agree with that. I mean, I think objectively, I thought if I'm observing this, not as a defense attorney, if I'm looking at this like a judge and I have to decide whether to allow this evidence into court or not, I have to ask myself, alright, is this relevant? If Travis and Gregory McMichael

Speaker 2: 1:17:56

Chased a Amman Arbery down the streets, did they

Speaker 4: 1:17:59

No about his past records? Did they know that he may have had prior shoplifting charges or

Speaker 2: 1:18:04

Whatever previously did that cost

Speaker 4: 1:18:07

Cause them to act the way they did? I'm going to guess at the answer is no, right. They saw some kid running down the street, that's it that's all the information that they had. So

Speaker 2: 1:18:14

Are they gonna be able to say, well, the only reason

Speaker 4: 1:18:16

We chased him is because we knew that this was a criminal based on his criminal history. No, they just, some kid running down the street, allegedly. They thought that there was some shopliftings taking place in the neighborhood. And so they wanted to stop that from happening.

Speaker 2: 1:18:28

That's it? So, so what

Speaker 4: 1:18:31

If he has all of these other records? Those shouldn't come into court, Travis McMichael and his father, Greg McMichael pursued the twenty-five year, old black man in a pickup truck after they spotted him running in their neighborhood on February 23rd.

Speaker 2: 1:18:42

Remember this was all pre Floyd, a neighbor,

Speaker 4: 1:18:46

William Rotty, Brian joined the chase, took cell phone video of Travis McMichael shooting. Arbery three times at close range with the shotgun, right? And the original story here was that all the shotgun went off and that Arbery was pulling the gun away from Travis, but Michael, he was pulling it. And if you're, if you have a finger on the trigger and you pull the shotgun, while your fingers going to go this way, as the gun's going this way, gun's

Speaker 2: 1:19:08

Going to go off three times.

Speaker 4: 1:19:10

Got it. Defense attorneys argue that the three men committed no crimes. They say the big Michaels suspected armory was a burglar after he had been recorded by video cameras, inside a nearby home, under construction. Travis, when Michael's lawyers say he shot Arbery in self-defense

Speaker 2: 1:19:26

And then if you were don't, if you haven't seen them

Speaker 4: 1:19:29

This video, I have a clip at the very end that was assembled by the incredible Fox. We have Jason Sheffield, one of Travis Michael's lawyers told superior court, judge Tim Timothy Wamsley on Wednesday that Arbery's past arrest. And other incidents include not only quote theft crimes, but also show a pattern that Arbery when confronted with wrongdoing by police or other authority would become angry and aggressive physically

Speaker 2: 1:19:55

And verbally his intent and motive

Speaker 4: 1:19:58

Is something that is central to the case, says Sheffield, which I understood. I mean, it's a defense attorney. You have to make that argument, but it's really not. Unless the Michaels knew about that, they know about it. Did they have any reason to know about it or did they just chase some

Speaker 2: 1:20:11

Black kid in the street without

Speaker 4: 1:20:14

Any other information prosecutor, Linda Dooney Koskie argued that Arbery's past had no bearing on the Michael's decision to pursue him with guns because they did not know anything about him prior to the fatal chase. Yeah, exactly. It doesn't matter what Arbery's thoughts were. It doesn't matter what his actions were. He was running away from these men and he was defense attorneys for the McNichols. Want the jury to know about 10 incidents from our race past, including that he was on probation at the time he was killed, Arbery pled guilty to charges that he carried a gun onto a high school campus in 2013 a year after he graduated Rodney Ellis police chief for Glen County school system testified at a hearing on Wednesday that Arbery tried to evade officers on foot and stopped only when two of them pointed guns at him. In 2017 court records show Arbery pled guilty to a shoplifting charge for stealing a TV from Walmart. Judge rulings could have a big effect on how this trial plays out last week. Scheduled jury selection to begin on October 18th

Speaker 2: 1:21:09

In

Speaker 4: 1:21:10

Brunswick, Georgia, 70 miles North of South of Savannah. All three men are charged with malice murder and other counts case sparked national outcry during a year of protest or killings of unarmed black people justice department on April 28th added hate crime charges to the MC Michaels. They all pled not guilty to the federal counts in front of a U S magistrate judge on Tuesday. This is the two guys,

Speaker 2: 1:21:30

Three guys. This is what they look like. We got Gregory. We got Travis over here, the sun. And then we got Roddy, Brian, over here,

Speaker 4: 1:21:38

Here in state court this week, Wamsley scheduled hearings, Wednesday and Thursday on several legal motions, awaiting settlement ahead of the plan murder trials prosecutions have asked the judge to allow jurors to see text messages and social media posts. They can show, they contend show a lack of racial Goodwill by all three defendants. So speaking of the N word, maybe those guys were using it. They include a text message exchange exchange from 2019 when McMichael twice uses a racial slur for black people right now. So the question then is,

Speaker 2: 1:22:10

Well, that's that kind of shows motive, right? They wanted to go and execute an African-American kid. So that's a different question. Now, the, you know, the judge might say, Hmm,

Speaker 4: 1:22:22

All right, well, we're not going to let any of Arbery's past stuff come into play, and we're not going to let any of the McMichael stuff come into play. And we're just going to start it from scratch. Both of these individuals come to the scene, come to the incident as Blake slate individuals or the judge. Well, we'll see, right? We'll see if the judge splits it one way or the other. We're going to know which way this judge is leaning. If the judge comes back out and says, alright, we're going to let in everything about Amman Arbery and we're going to keep out the text messages from these former, uh, from these guys. Well, we know where that judge is leaning and vice versa. If everything from Ahmad Arbery's past stays out in everything from these text messages, come in. Think we know where that trial is. Leaning Georgia Bureau of investigation. Agent Richard dial has

Speaker 1: 1:23:06

Testified that Brian told investigators, Travis, we Michael uttered a racial slur while standing over Arboretum

Speaker 2: 1:23:12

On the street. So Brian,

Speaker 1: 1:23:15

So Roddy, Brian. So this guy is saying that Travis, Michael uttered a racist slur while standing over Arbor, as he shot him. Wow. That's not good, Jason.

Speaker 2: 1:23:25

And that that's right. That's that's probably going to come out at trial. Okay. If, if he, yeah, that's probably going to come out at trial. If Roddy was

Speaker 1: 1:23:36

There on the scene, standing over him

Speaker 2: 1:23:39

And has already testified about that to Georgia Bureau of investigation, investigators that he used the word

Speaker 1: 1:23:46

While he was standing over Arbery after he shot him three times, that is not going to look good for a jury. Jason Sheffield and attorney for Travis. We Michael said his client denies making that Mark remark. All right. So, wow. Yeah, that's going to be spicy. We've got in his final days, Ahmad Arbery's life was at a crossroads crossroads. This was posted last year, May 25th. Just a quick recap on this. Let's see what was going on with him.

Speaker 2: 1:24:11

He decided to take a break from college, wait until the fall. He would cry

Speaker 1: 1:24:17

Four lanes of the Jekyll Island Causeway three months ago at the age of 25, he ran through scintilla shores for the first time Arbery was shot to death by a father and son who told police. They grabbed guns and pursued him in a pickup truck because they believed he was responsible for break-ins in their neighborhood. Black man killed by two white men. Before Arbery's named joined the litany of hashtags in here. He was a skinny kid. Wanted to play in the NFL. Those who knew of him speak, uh, you know, nice of him, easy smile, infectious laughter, all that stuff. They also acknowledged legal troubles

Speaker 2: 1:24:46

Stop. After high school carried a gun to high school, Walmart store, all this stuff.

Speaker 1: 1:24:52

I worked at his father's carwash, landscaping business, Lee merit and attorney for the families of the circumstances of his life. Touch on something deeper about American society. Our ravenous criminal justice system tends to take young black men in their teenage years, introduces them to the system and never lets them out. But when I'm on died, he was at a point of transition.

Speaker 2: 1:25:12

Ultimately Cooper

Speaker 1: 1:25:13

Jones had nothing her son did in his short life justifies the way he died. I will get answers. That was my promise. That's the last thing I told him on the day of his funeral, that mama will get to the bottom of it. So

Speaker 2: 1:25:22

You know it she's right.

Speaker 1: 1:25:24

Nothing justifies that. Right. And, and we've talked about this on the show. You know, sometimes people will say,

Speaker 2: 1:25:29

Well, can I use

Speaker 1: 1:25:31

Lethal force to protect myself, to protect my life? Well, yeah, you can. That's not what happened here. Right? What happened here is, uh, allegedly these two guys saw somebody who was breaking into other homes. So they weren't using use of force to protect another person's life. They were chasing somebody who they thought was stealing property or, or maybe theoretically a threat to other people. And they were chasing him down the road. He was running away from them. They pursued him. They could have called the police. They didn't do that. And so they are responsible for the repercussions of their actions. There are consequences. If you

Speaker 4: 1:26:04

Go into the store and break the item, you got to pay for the item, they, they thought it was within their purview to act as unofficial law enforcement people in their, in their neighborhood. Not allowed to do that. Somebody died as a result of it. So they're going to have to pay the consequences. Now evidence of prior convictions is this stuff admissible, right? We've talked a lot about this in the Shovan case. This comes over from, uh, where this coming from. Hot air and Nolo. So here is, uh, something that Ms. Faith clipped for us, it says here by late cigars, when any witness, including a defendant testifies his or her credibility is at issue. The fact-finder either the judge or the jury must decide whether and how much to believe the witness it's called credibility. Yeah. That's why courts allow into evidence, certain kinds of past convictions to aid in the determination of how trustworthy the witnesses, general prosecutors can't use evidence of prior convictions to prove a defendant's guilt or tendency to commit crimes. They can use them to question the truthfulness or the credibility of the defendant's testimony. Yeah. So, yeah. W w we talked a lot about this. There are rules in the federal rules of evidence that will you can't, you can't use evidence. That's sort of showing a, a proclivity to do something. And if you do that, it can be more prejudicial than it is probative. It can mean that, that this doesn't actually help us answer the question. Right? So in, in Derek Chauvin's case, we all know this. We spent a lot of time talking about this, the question there was what killed George Floyd, right? What was it? And so the judge said, well, none of his prior convictions killed him. They had nothing to do with that. The cause of death, nothing to do with what caused his heart to stop beating. It was either a[inaudible] or if you're a defense is looking at it from a defense perspective, it was a combination of other things, heart disease, and the list goes on. So in that situation, if, if we know that the only relevant inquiry is about the cause of death, any prior convictions have nothing to do with it. Now, the judge did let in the incident from 2019, why? Because Floyd was hospitalized, he was in the hospital with a blood pressure of like one to two, 10 over something very, very high. And because that might have had long lasting consequences, because that may have ultimately impacted his heart, that could have contributed to his death in 2020, that bit of information comes in, but all of the other priors, none of that stuff is relevant. Same thing here. Okay. If we're talking about a scene in which the Mont Arbery's running down the street, and then the Michael's get in their car and they chase after him, what do the priors have to do with anything? If the Michaels didn't know about it, nothing. I want to show you just a click, a quick clip that my Fox put together some time ago. And he sent this over to us. He said, I really liked the cover, these things I pointed out before showing Travis pointing his shotgun at Arbery prior to even being 20 feet away. Right. And so here, this is, this is, yeah, this is very interesting. So the big

Speaker 2: 1:29:02

Claim from people who are sort of pro Arbery

Speaker 1: 1:29:06

Pro MC Michael's, right, there's a big contingent

Speaker 2: 1:29:08

Of individuals. And I think

Speaker 1: 1:29:10

Empathize with the argument that say, listen, you know, you need to do some local policing. All right, you need to be community. Watch. You know, we need to make sure that we're keeping our neighborhood safe. Uh, we're defunding the police across the country. There's protests and riots there stopping traffic in streets. And so we, as, as citizens, and I'm a second amendment person, somebody who believes that we have a fundamental right to protect ourselves and our families and our lives. We want to maintain all of that. Now, if we're in a situation where

Speaker 2: 1:29:37

We can't do that, that's okay.

Speaker 1: 1:29:40

Problem. And so some people are saying, no, what the, what the MC Michael's were doing was totally acceptable, was totally legitimate. They were allowed to police themselves or police their neighborhood. And they were responding to somebody who was coming at them. Right. So in this image, now you're saying, all right, so now Arbery's running back their direction. And so if you, if you watch the full video that he's sort of, uh, doing a loop, it's kind of a dead end. So he's turning around and walking, you know, running back this direction to sort of escape these guys. They've already chased him this way. And I think he came back around this way. And so now you'll see that Arbor is running back towards them. Right. And you're going to notice that Travis is already raising the show.

Speaker 2: 1:30:18

Okay. So, uh, basically what the, what the defense is is that this was solved.

Speaker 1: 1:30:23

The fence as RB was approaching him, he had to raise his gun and then fire it in order to defend himself because he was about to be assaulted by Arbery Barbary was

Speaker 2: 1:30:31

Really trying to sort of escape

Speaker 1: 1:30:33

That col-de-sac because they'd already chased him around a number of different areas. Anyways, what ends up happening is Arbery goes around this direction, around the other side of the car. And Michaels kind of goes around this side of the car. They come over here and there's a shooting and Arbery is shot and killed. And those two guys are now charged with murder. So trial is coming up in October. We're going to see where this continues to go. We've got Gregory. Nicholas says, where do we draw the line on drawing the line? Yeah, that's a good question. I don't know. I don't know. I think we just have to keep drawing lines. I don't know what the alternative is. Uh, good to see you. Gregory. We got NYU renal MD in the house says, how does the prosecution get messages from the defendant? What if the defendants testified and said,

Speaker 2: 1:31:20

We Googled him and knew he

Speaker 1: 1:31:22

Had a prior conviction for stealing. Could that direct testimony be prevented? So very good procedural questions there and why renal MD. I'm going to guess that when they were arrested, they probably got warrants to search everything, right. Their house and all of their property. They were involved in a murder there. They're doing an investigation to figure out what happened there, right? So the phones are going to be naturally a part of that inquiry. Uh, and what if the defendants testified and said, we Googled him, knew he had a prior conviction for stealing.

Speaker 2: 1:31:50

So that would be, yeah, that would be different, right? Because that would explain some direct evidence that, that they, that they utilized, uh, in order

Speaker 1: 1:32:00

To make the decision that they did now, that would require them to testify. Right? They'd have to take the stand and testify, which almost never happens. And I think we know that they didn't know anything about them because,

Speaker 2: 1:32:09

Um, we saw the images

Speaker 1: 1:32:11

Of it, uh, of a lot of the surveillance footage from around the neighborhood. And I just don't think that they had any indication of who this person was. And nobody knew who he was. And there was some indication that there was some, you know, black kid who was stealing things or was looking suspicious. But again, that does not justify

Speaker 2: 1:32:27

The killing

Speaker 1: 1:32:28

Of another person, right. We're talking about property, which is very inconsequential relative to human life, call the police for that type of stuff. Don't get in your car and go chase down a kid because they stole,

Speaker 2: 1:32:40

Uh, you know, a two by four out of a house that's under construction. All right.

Speaker 1: 1:32:44

Great questions. And I want to thank all of you who sent those in today. They came over from watching the watchers.locals.com. And I want to welcome some new supporters over there. We've got dog whistle in the house. We've got lens crew. Welcome. We have N w H underscore. Scott is in the house. We have, I am tech. I want to welcome all of you. Thank you, dog whistle and lens crew. Also, thanks to the great questions that came over today from all of you. You see yourself here on the screen. Thank you so much. We've got a lot of good stuff over there. If you're not already on locals, you should be. You can grab a copy of my book. It's for free. It's called beginning to winning. There's a free PDF. You can also download a copy of the slides that we went through today. A copy of the impeachment party documents. If you want to impeach any elected official, you can. I have a template for you, just download it and do it. We have existence systems template as well. You can get that for free. You can share links throughout the day and you can meet great people. There's a lot of good reasons to be over@watchingthewatchersdotlocals.com. And I've got two more for you. Number one, we've got a monthly locals meetup. It's going to be taking place via zoom on Saturday, May 22nd. There's a registration form over@watchingthewatchersdotlocals.com. So when you go over there, you can just find the top pin to comment, and you'll just click that. Or you got to be a supporter to attend the zoom meetings. But if you are just click the registration link, you're going to get reminder emails. The whole thing should be automated. We look forward to seeing you on the 22nd. If you want to come to another event, this one's going to be a little bit different. This is our law enforcement interaction training. It's going to be taking place June 12th, 12 to 2:00 PM Eastern time, probably 12 to one 30, but I'm going to keep another additional 30 minutes or so to hang and share some questions and kind of kick the can around a little bit. So come join us there as well. June 12th, Saturday, it's gonna be 9:00 AM. Arizona time, 12:00 PM Eastern time, which will be a lot of fun law enforcement interaction training. What happens if you get pulled over and a cop says, have you had anything to drink tonight, sir?

Speaker 2: 1:34:39

What do you say to that? Do you say no? What do you say? Well,

Speaker 1: 1:34:44

You're going to have to come find out Saturday, June 10th, 12th, and it's over@watchingthewatchersdotlocals.com. And that is it for me, my friends. I want to thank you for being a part of the show before we get out of here. Quick reminder, that I am a criminal defense lawyer here at the R and

Speaker 4: 1:34:58

R law group. We're in Scottsdale, Arizona. We love helping good people who have been charged with crimes, find safety, clarity, and hope in their cases. Love to help to do that. And we're quite good at it. We can help with any type of criminal charge in the state of Arizona can be things like DUIs, drugs, domestic violence, misdemeanor cases, felony cases, anything, and everything in between even old cases. If you have an old warrant you need to quash, or you have the desire to vote again, you can restore your rights. You can possess a firearm, vote, apply for federal benefits, and the list goes on and on there's a lot we can do. We offer free case evaluations. We're right in the heart of Scottsdale. We have a nice office. We'd love to have you come by and just meet with our team. See if we can help you get through this situation, because there is a lot we can do. I mean, a lot of people come into our office with zero hope. They just don't realize how much we can do to be supportive of them in this difficult time. So if you happen to know anybody, we would be honored and humbled that you send them our direction. We'll make sure we take very good care of them. Other than that, my friends want to thank you once again, for being a part of the show, we are going to be back here tomorrow. Same place, same time. However, I may be in a different location. I may be in studio number two, because I have an event all day tomorrow. We have a, I have a two day event that's taking place, uh, all day tomorrow and Friday. And so I may bunker down, uh, out of the office and we may do the show from a separate location, but I have to do a trial run to make sure that it's all working. So, uh, it doesn't change anything for you. You have to be right here, same place. You already know where to go. And, uh, one other quick note, by the way, I think we're live streaming on Odyssey. So I set that up today. Don't even know if it's working yet. I'm going to check right after the show, but I transferred some, uh, some library coin over there and I've got that set up. So I think we might be live streaming over there right now. I hope it's working. I'm going to check. And then we are probably going to be trying to get set up over on rumble next. So super excited about that and remember this right? We had a, we had this conversation when Trump was thrown off all the platforms. Everybody was freaked out. You know, there's nowhere else to go. YouTube is the only place. Well now rumble has live streaming. Now honestly has live streaming and locals is coming out with a too soon. So a lot of the alternative platforms are really, really building themselves up. And it's because of you, it's because of your support. It's because people are sick of it and they want to go and be with other people where there are free thoughts and free conversations taking place. So I want to thank you once again, for being a part of that, it's really humbling. And I think it's very exciting that we are all sort of, uh, being a part of the solution. You know, oftentimes we kind of wonder what we can do to move the needle forward in this country. And this is one of them's core to this, this slow abandonment of these big tech platforms in favor of some of these other platforms. And I'm excited to be a part of it. And I appreciate all your support in that endeavor as well. All right. So enough out of me, same time, same place tomorrow, right here. 4:00 PM Arizona time, 5:00 PM, mountain 6:00 PM, central and 7:00 PM out there on the East coast for that one, Florida, man, everybody have a tremendous night's sleep. Well, I'll see you right back here tomorrow. Bye-bye.