[SPEAKER_01]: Hey y'all, want to make a quick note before we jump into this episode. [SPEAKER_01]: We recorded this episode and not like 12, 15 hours later, Calay dropped the Supreme Court decision that has basically put the final nail in the coffin of the Voting Rights Act. [SPEAKER_01]: So just so you know, this episode is about Brecht, but our episode about Calay is coming out in two days. [SPEAKER_01]: So stay tuned for that. [SPEAKER_03]: We'll hear our human now in number 91-73-58.
[SPEAKER_03]: Todd A. Bracht vs. Gordon A. Abramson. [SPEAKER_02]: Hey everyone, this is Leon from Prologue Projects. [SPEAKER_02]: For today, Peter, Reannon and Michael are talking about Brecht V. Abramson, the case from 1993 centered around the right to remain silence and the concept of harmless error. [SPEAKER_02]: Todd Brecht was charged with murder for shooting his brother-in-law. [SPEAKER_02]: During his trial, Brecht testified that the shooting had been an accident.
[SPEAKER_02]: An explanation that prosecutors sought to undermine by pointing out the jury, and Brecht had never shared it during the police investigation. [SPEAKER_02]: Brecht was found guilty and sentenced to life in prison. [SPEAKER_02]: On appeal, he argued that the prosecution's reference to his silence, which famously cannot be used against even a court of law, violated his right to do process.
[SPEAKER_02]: Brecht ultimately filed a rid of habeas, and his case made it to Justice William Rangwist's Supreme Court. [SPEAKER_02]: In a five-four decision, the Justice is upheld a conviction, finding that the prosecution's conduct was, quote, a harmless error. [SPEAKER_02]: This is five to four, a podcast about how much the Supreme Court sucks.
[SPEAKER_04]: Welcome to Five to Four, where we dissect and analyze the Supreme Court cases that have sedated our civil rights, like my co-hosts, sedating himself. [SPEAKER_04]: I'm Peter. [SPEAKER_04]: I'm here with Reanan. [SPEAKER_01]: Hey. [SPEAKER_04]: And Michael. [SPEAKER_03]: Yeah, he's talking about me when I actually took my dogs things Idy meds in the morning. [SPEAKER_03]: Unbelievable. [SPEAKER_03]: just like try to get in a better routine of giving him.
[SPEAKER_03]: So like the day before I'd forgotten to give him his meds. [SPEAKER_03]: And then when I went out, he like chewed on things. [SPEAKER_03]: And I was like, can't forget to give him his meds today. [SPEAKER_03]: So I take my morning meds and I'm like, gonna give Lambo his meds. [SPEAKER_03]: And I just, I open them. [SPEAKER_03]: I'm like in fucking autopilot. [SPEAKER_03]: It's like, you know, I just woken up.
[SPEAKER_03]: And I like open his meds and I just like pop him in my mouth, you know, I'm still carrying my glass of water for when I just took my meds, take a sweet swallow one, but not the other and I was like, what the fuck am I doing and like spit the other out, but yeah, the one I swallowed was a sleep med that is like four times the strength of like normal human dosage sleep med. [SPEAKER_03]: And I was I was I was fucked up for like for several hours.
[SPEAKER_03]: I couldn't pass a field's a variety test. [SPEAKER_03]: I couldn't walk a straight line. [SPEAKER_00]: Like for my whole flight and during our prep call. [SPEAKER_04]: Yeah, the best the best part of this was that the only reason we know about this is because Rianne was like. [SPEAKER_04]: Just checking in, she was like, how you doing, Michael? [SPEAKER_04]: And Michael was like, I took my dog's pills.
[SPEAKER_03]: She was like, Michael, you haven't been as active in the text chat. [SPEAKER_03]: I was like, yeah. [SPEAKER_03]: That's because I've been stoned off my ass. [SPEAKER_03]: I'm a dog anxiety. [SPEAKER_04]: I'm a little bit lit on dog pills too. [SPEAKER_04]: It's our boy Michael. [SPEAKER_04]: He, he was pitching ideas just a little looped on the Augbills. [SPEAKER_00]: Yeah. [SPEAKER_04]: It was like, what, what if we talked about this?
[SPEAKER_04]: There is one point Michael where I said something and you were like, that's a good point to hit. [SPEAKER_04]: And I was like, for a second, I was like, oh, cool Michael likes it. [SPEAKER_04]: And then I was like, on the other hand. [SPEAKER_01]: He's the nobody's talking about right now. [SPEAKER_04]: Michael's fucking gone off that dog pill dude.
[SPEAKER_04]: All right, this week's case, Brecht V Abramson, this is a case from 1993, about what happens when your constitutional rights are violated during your criminal trial, specifically we're going to talk about the concept of harmless error, where the court makes a mistake in your trial, but there's no recourse because the error is deemed to be harmless.
[SPEAKER_04]: In this case, a man was accused of murder, and in the course of the investigation, he invokes and exercises his right to remain silent. [SPEAKER_01]: That's in the constitution. [SPEAKER_04]: In the constitution, folks. [SPEAKER_04]: Then at trial, the prosecution tries to use his silence against him, arguing that it implied that he is guilty. [SPEAKER_04]: which you cannot generally do, you can't use someone's silence against them, right?
[SPEAKER_04]: That's part of what makes it a protected constitutional right. [SPEAKER_00]: Yeah. [SPEAKER_04]: But the trial court lets it happen, and this guy is found guilty of murder. [SPEAKER_04]: Then he petitions the federal courts to challenge the legitimacy of his trial. [SPEAKER_04]: He's like, you know, you... [SPEAKER_04]: you violated my constitutional rights during the trial, right? [SPEAKER_04]: Right.
[SPEAKER_04]: This makes its way to the supreme court, and they say that it's just harmless error. [SPEAKER_04]: Yeah. [SPEAKER_04]: No harm in violating your rights. [SPEAKER_01]: Yeah, the court did violate your rights. [SPEAKER_01]: But, um, [SPEAKER_01]: What harm was that, right? [SPEAKER_01]: No harm no foul, right? [SPEAKER_01]: Exactly. [SPEAKER_01]: Exactly. [SPEAKER_01]: That's that's like the holding of this case is no harm no foul.
[SPEAKER_01]: Let's get into the background and like what happened here and actually I want to frame it up by how the supreme court describes what happened in this case. [SPEAKER_01]: The description of facts here is sorry in saying. [SPEAKER_01]: It is pure bad boy theory.
[SPEAKER_04]: Yeah, this is very good boy bad boy theory, which as a quick reminder, since it's becoming a core part of, we get thought, good boy bad boy theories, the theory that conservatives will treat different people differently and describe them different rights based on whether or not they think they are a good boy or a bad boy is especially relevant in the criminal context. [SPEAKER_01]: Right. [SPEAKER_01]: So that is good boy, bad boy theory.
[SPEAKER_01]: We've talked a lot on previous episodes that I have to do with crime, the rights of criminal defendants. [SPEAKER_01]: Definitely when somebody is hurt, somebody has died death penalty cases at the Supreme Court. [SPEAKER_01]: They are going to try to make out the criminal defendant.
[SPEAKER_01]: They're going to try to make that person out to be a monster that is a bad boy who has done bad things to good people and that is totally totally on display here in this majority opinion, which is written by noted segregationist justice rent quest should we tell our listeners that bad boy theory has officially entered the mainstream of legal discourse in the Harvard law review on the last yeah. [SPEAKER_01]: Well, are we cited? [SPEAKER_03]: We are cited multiple times.
[SPEAKER_03]: The title of this student note is, I think, bad boy jurisprudence. [SPEAKER_03]: Okay. [SPEAKER_03]: Future Supreme Court justice there, am I? [SPEAKER_04]: Yeah, they consulted with us about it last fall. [SPEAKER_04]: Yeah. [SPEAKER_01]: Oh, that's right. [SPEAKER_01]: That's right, I remember. [SPEAKER_03]: Peter and I both gave guidance. [SPEAKER_04]: Yeah, yeah. [SPEAKER_04]: I... [SPEAKER_04]: did not respond to the email, which I only saw.
[SPEAKER_04]: I only saw when I when they like reached out being like, hey, look, we published the article today. [SPEAKER_04]: I was like, oh, cool. [SPEAKER_04]: And then I was like, wait, I never actually did this right. [SPEAKER_03]: I talked to her. [SPEAKER_03]: I talked to her about her ideas. [SPEAKER_03]: Yeah. [SPEAKER_04]: I looked back and I had ghosted them accidentally in my defense. [SPEAKER_04]: I've done this to great friends of mine.
[SPEAKER_04]: I've done this to people I really care about. [SPEAKER_00]: This is not just, it's not just they are lost in an harbor. [SPEAKER_00]: That's not why Peter didn't respond. [SPEAKER_04]: I can't explain why as of now, but I'm not mad at myself. [SPEAKER_04]: I think it was funny. [SPEAKER_01]: Yeah, so bad boy theory proliferating. [SPEAKER_01]: It's spreading to the masses. [SPEAKER_01]: And here you see an acute example.
[SPEAKER_01]: So here's how I would say the facts in this case, okay? [SPEAKER_01]: I would say it like this. [SPEAKER_01]: Thomas Brecht was living with his sister and her husband when he was arrested for shooting his brother-in-law, his sister's husband. [SPEAKER_03]: Right, and important to note here, both of the facts of the case and for good boy, bad boy theory, this wasn't any old brother-in-law.
[SPEAKER_03]: Brecht's brother-in-law was actually a district attorney, so maybe the ultimate good boy. [SPEAKER_01]: Yeah, the goodest of good boys to the Supreme Court. [SPEAKER_04]: Gold and retriever. [SPEAKER_01]: Yeah. [SPEAKER_01]: And so Brecht, shot and killed his district attorney brother-in-law. [SPEAKER_01]: And of course, gets charged. [SPEAKER_01]: First degree murder, he's arrested.
[SPEAKER_01]: And when he's arrested during the course of the investigation, he never makes a statement to police. [SPEAKER_01]: He didn't tell police what happened. [SPEAKER_01]: He didn't tell anybody a story. [SPEAKER_01]: He didn't confess nothing. [SPEAKER_01]: He remained silent. [SPEAKER_01]: Then at his trial, he did take the stand and he testified in his own defense, and when he testified he said this was an accident. [SPEAKER_01]: I didn't mean to shoot my sister's husband.
[SPEAKER_01]: I didn't mean to kill him. [SPEAKER_01]: I did not intend to do this. [SPEAKER_01]: But the state at the trial, the prosecutor brings up in a couple of different ways that Brecht had never spoken to police before this, that he had been silent up until this point. [SPEAKER_01]: The prosecutor asks Brecht when he's on the stand, like, [SPEAKER_01]: And Brecht says, quote, I knew what happened. [SPEAKER_01]: I'm just telling it the way it happened.
[SPEAKER_01]: I didn't have a chance to talk to anyone. [SPEAKER_01]: I didn't want to call somebody from a phone and give up my rights. [SPEAKER_01]: So I didn't want to talk about it. [SPEAKER_01]: No, sir, pretty clear invocation. [SPEAKER_01]: I used my Fifth Amendment right to stay silent, right? [SPEAKER_01]: But the prosecutors bringing up the fact of his pretrial silence, it happens multiple times.
[SPEAKER_01]: He brings it up when questioning Brecht a few different times that he never spoke about this before. [SPEAKER_01]: He never told anyone before. [SPEAKER_01]: He didn't tell the cops that it was an accident when he had the chance. [SPEAKER_01]: And then during closing argument to the jury, the prosecutor says, quote, [SPEAKER_01]: Brecht's shoes. [SPEAKER_01]: I'd say hold on. [SPEAKER_01]: This was a mistake. [SPEAKER_01]: This was an accident.
[SPEAKER_01]: Let me tell you what happened, but he didn't say that did he? [SPEAKER_01]: No, he waited until he hears our story. [SPEAKER_01]: So prosecutor implying here, right? [SPEAKER_01]: That the fact of Brecht's silence that he never talked to police, that he never essentially, you know, gave a rundown of the facts to anybody. [SPEAKER_01]: And that he never said that it was an accident before he took the stand that that implies that he's guilty.
[SPEAKER_01]: That's how I would tell the facts of this case. [SPEAKER_01]: Now, let me as Reannon also say that this is wildly out of line for a prosecutor to do. [SPEAKER_01]: You cannot use the fact of someone's exercise of their right to remain silent against them. [SPEAKER_01]: You cannot imply that they must be guilty because they were silent up until a point. [SPEAKER_01]: You cannot imply that they were silent as part of their own defense strategy.
[SPEAKER_01]: You basically cannot reference that they were silent. [SPEAKER_01]: If he didn't testify, you couldn't say, well, if he was innocent, he would have taken the stand and said so. [SPEAKER_01]: No, no, no, no, no, no. [SPEAKER_04]: It's also something that every prosecutor on earth knows. [SPEAKER_01]: They know it. [SPEAKER_04]: And every judge knows, right?
[SPEAKER_04]: Yes. [SPEAKER_04]: And like the judge is supposed to say, hey, hey, no, no, can't say that and then instruct the jury. [SPEAKER_05]: Yes. [SPEAKER_04]: They cannot take into consideration the defendant's silence, right? [SPEAKER_04]: That's what should happen. [SPEAKER_01]: Exactly. [SPEAKER_01]: This is like so clear. [SPEAKER_01]: Like this is maybe what like the most well-known constitutional right? [SPEAKER_01]: Like the right term in silent.
[SPEAKER_01]: This is well well-known. [SPEAKER_01]: So this is really, really egregious prostitutorial behavior here. [SPEAKER_01]: That's how I would tell the facts. [SPEAKER_01]: And then of course, I've already added my own context at my viewpoint here. [SPEAKER_01]: But that's how I would tell the facts. [SPEAKER_01]: Back to the case. [SPEAKER_01]: Back to Rennquist. [SPEAKER_01]: Here's how Rennquist starts this opinion.
[SPEAKER_01]: Petitioner Todd Brecht was serving time in a Georgia prison for felony theft when his sister and her husband, Molly and Roger Hartman paid the restitution for Petitioner's crime and assumed temporary custody of him. [SPEAKER_01]: The Hartman's brought Petitioner home with them to Alma Wisconsin where he was to reside with them before entering a halfway house.
[SPEAKER_01]: This caused some tension in the Hartman household because Roger Hartman, a local district attorney, disapproved of petitioners heavy drinking habits and homosexual orientation. [SPEAKER_01]: Not to mention his previous criminal exploits. [SPEAKER_01]: To make the best of the situation though, the Hartman's told petitioner on more than one occasion that he was not to drink alcohol or engage in homosexual activities in their home.
[SPEAKER_01]: Just one week after his arrival however, Brecht violated this house rule. [SPEAKER_02]: cool. [SPEAKER_04]: So this is, uh, yeah, not just normal facts. [SPEAKER_04]: Uh, just normal. [SPEAKER_04]: Uh, this is just a normal recitation of facts by the Supreme Court. [SPEAKER_04]: By the way, he's a gay drunk. [SPEAKER_01]: Right. [SPEAKER_01]: He's gay. [SPEAKER_01]: He's gay criminal.
[SPEAKER_04]: Yeah. [SPEAKER_04]: He's gay and and a drunk, which I'm sorry, but you live in Wisconsin. [SPEAKER_04]: Well, [SPEAKER_04]: what are we talking about here you know what I mean the only guy I want to hang out with in all my Wisconsin around this time yeah is it not hard enough imagine just imagine it's like the eighties and you're just a gay dude in Wisconsin but yeah I'm sorry but hand me a beard [SPEAKER_01]: No, it's horrible.
[SPEAKER_01]: And by the way, Rankwist is like just one week after his arrival petitioner violated this house rule. [SPEAKER_01]: It's just that he drank. [SPEAKER_01]: He didn't violate the quote unquote house rule about homosexual, like staying away from homosexual activity. [SPEAKER_01]: That's just thrown in there because Rankwist wants to do bad boy theory here. [SPEAKER_01]: He wants to make sure that you know how gross this guy is. [SPEAKER_01]: Also to Rankwist.
[SPEAKER_04]: He's really homosexual activity means [SPEAKER_04]: It's not specified. [SPEAKER_04]: It could be anything. [SPEAKER_01]: Right. [SPEAKER_01]: Just that he's gay. [SPEAKER_01]: That's what Ryan Quest is talking about here. [SPEAKER_01]: How is that fucking relevant? [SPEAKER_01]: How is that relevant to anything here? [SPEAKER_01]: He adds in that the guy who was shot had to crawl to a neighbor's house to get help. [SPEAKER_01]: it was at the neighbor's house that he died.
[SPEAKER_01]: And by the way, he had to crawl to the neighbor's house because evil gay guy Todd Brecht had left the upstairs phone off the receiver. [SPEAKER_01]: So the guy who was shot couldn't call for help from downstairs. [SPEAKER_01]: Why are these details in here? [SPEAKER_04]: Right. [SPEAKER_01]: Is a belt constitutional violations that happened at trial. [SPEAKER_01]: So there's the Supreme Court's rundown of the facts.
[SPEAKER_01]: There is more in the rundown of the facts about the allegations around the shooting and how Todd Brecht acted afterwards and how he tried to get away from police than there is treatment in the facts of what happened at trial and the prosecutor using his silenced against him. [SPEAKER_01]: So, Brecht gets convicted. [SPEAKER_01]: He has found guilty of first degree murder and he appeals his conviction. [SPEAKER_01]: He says, what the fuck?
[SPEAKER_01]: This was a violation of my due process, right? [SPEAKER_01]: My right to a fair trial because my invoking of my Fifth Amendment rights was used against me. [SPEAKER_01]: It was used to show that I'm guilty. [SPEAKER_01]: So the appellate court in Wisconsin agrees with him says this was a violation of his constitutional rights. [SPEAKER_01]: That error that happened was prejudicial. [SPEAKER_01]: The jury was like, uh, was swayed by that.
[SPEAKER_01]: But the Wisconsin Supreme Court disagreed puts Brecht's conviction back in place. [SPEAKER_01]: And so Brecht is put in a position of now taking things to federal court. [SPEAKER_01]: He's appealing in federal court, starts at the federal district court level, and the lower district court. [SPEAKER_01]: agrees with Brecht again, but the circuit court of appeals disagrees. [SPEAKER_01]: This is getting bounced up and down.
[SPEAKER_01]: The state court system, the federal court system, and so that's how we get to the Supreme Court. [SPEAKER_04]: So legally, the heart of this case is really about a procedural standard. [SPEAKER_04]: It's about what the standard is for harmless error. [SPEAKER_04]: And harmless error is this idea that when the trial court makes a mistake, sometimes that mistake is harmless. [SPEAKER_04]: It didn't impact the verdict.
[SPEAKER_04]: And so we're just going to let it all stand even though we all agree. [SPEAKER_04]: There was a constitutional violation, right, or at least potentially. [SPEAKER_04]: So before this case, if there was a constitutional error made during a criminal trial, [SPEAKER_04]: the conviction would be set aside unless it could be shown beyond a reasonable doubt that the error was harmless. [SPEAKER_04]: That's a very high bar.
[SPEAKER_04]: It basically means it needed to be almost certain that the error did not impact the outcome of the trial. [SPEAKER_04]: But here, they changed that standard, at least for habeas cases. [SPEAKER_04]: habeas cases is, you know, when you petition a federal court to say, hey, my constitutional rights were potentially violated here. [SPEAKER_04]: They say that instead, [SPEAKER_04]: The verdict will be upheld unless the error had a quote substantial and injurious effect on the verdict.
[SPEAKER_04]: So, it's not like super clear what that means, right? [SPEAKER_04]: Substantial and injurious? [SPEAKER_04]: Whatever. [SPEAKER_04]: Basically, it seems like they are just flipping the burden upside down, right? [SPEAKER_04]: It used to be that if there was an error in your trial, you're probably going to get a new trial unless the error was really minor. [SPEAKER_01]: Super minor. [SPEAKER_04]: But now, it's on you to prove that the error was substantial, right?
[SPEAKER_04]: The burdens flipped. [SPEAKER_04]: So they apply this new standard to this case. [SPEAKER_04]: And again, what happened here was that this guy gets on the stand at his trial, and he says the shooting was an accident. [SPEAKER_04]: He had not brought this up before he had remained silent. [SPEAKER_04]: And the prosecution tries to play that against him. [SPEAKER_04]: They try to use it to undermine his credibility.
[SPEAKER_04]: Technically, the prosecution is allowed to bring up the fact that he remained silent before he was read his Miranda rights, but they can't bring up the fact that he remained silent after, right? [SPEAKER_04]: And Rankwiss basically says, well, at the end of the day, I doubt the jury would change their mind based on this, because they already knew he remained silent before the Miranda warning, so whatever, right?
[SPEAKER_04]: To me, it's like, well, [SPEAKER_04]: That's not, I don't find that very persuasive. [SPEAKER_01]: I don't find that very persuasive. [SPEAKER_01]: That's still using the fact of his silence post Miranda against him. [SPEAKER_01]: Right. [SPEAKER_01]: That right. [SPEAKER_01]: Like, there's no other way to say that.
[SPEAKER_04]: Well, I mean, so first of all, I do think that if you follow this logic, RENQUIST is implying that prosecutors just don't have to respect this rule, right? [SPEAKER_04]: Exactly. [SPEAKER_04]: They can just bring up your silence and hold it against you without penalty in most situations, right? [SPEAKER_04]: And that's really the whole analysis here. [SPEAKER_04]: He's just like, I think the jury would have come out the same way. [SPEAKER_04]: So we're good, and that's right.
[SPEAKER_04]: And that's that, right? [SPEAKER_04]: He's just eyeballing the situation and saying, like, I don't think this would have changed their mind. [SPEAKER_04]: Still guilty, right? [SPEAKER_04]: That's it. [SPEAKER_04]: We'll talk about that in a second. [SPEAKER_04]: But that is like the whole analysis, right? [SPEAKER_04]: The other thing to note here is that this new standard they created, like I mentioned, only applies to Habius cases.
[SPEAKER_04]: The old standard still applies to what are called direct appeals. [SPEAKER_04]: Direct appeals are just traditional appeals, right? [SPEAKER_04]: I lost this case, now I'm appealing it up to the next court. [SPEAKER_04]: This is habeas, which is like, hey, this court over here violated my constitutional rights. [SPEAKER_04]: Now I'm filing a new case in federal court challenging that, right? [SPEAKER_04]: It's a whole separate legal action.
[SPEAKER_04]: So there's an additional problem here, which is that this creates a weird imbalance, where if you appeal directly, the standard for harmless error is one thing, [SPEAKER_04]: And if you challenge it with a habeas action, the standard is something else, right? [SPEAKER_04]: So your constitutional rights are basically fluctuating based on how you appeal your constitutional rights violation.
[SPEAKER_03]: To put that another way, like even if a court believes, like a habeas court believes that you know, your direct appeal that judge misapplied the standard, [SPEAKER_03]: They might still find that you don't get habeas relief because they have a different standard to apply. [SPEAKER_03]: Which is pretty crazy when you think about it. [SPEAKER_03]: That they can look at it and be like, actually they got the law wrong, but I don't get to say that.
[SPEAKER_03]: I say you're still stuck with it. [SPEAKER_03]: Like, it's fucking, it's weird. [SPEAKER_03]: It's weird. [SPEAKER_03]: You know, Stevens, Justice Stevens, liberal lion, Justice Stevens. [SPEAKER_03]: provides the fifth vote here. [SPEAKER_03]: Good job, buddy. [SPEAKER_03]: And he writes this concurrence basically being like, hey, look, yeah, we're giving a different standard here. [SPEAKER_03]: And that's true. [SPEAKER_03]: But the difference isn't as big as you think it is.
[SPEAKER_03]: And he's like, look, sometimes even on the, uh, the old standard judges disagree. [SPEAKER_03]: Look at this one case where, you know, [SPEAKER_03]: The court came out one way, but some of the justice is dissented on the same standard and we disagree and so still judges have to apply their best opinion and guess what, that's going to vary anyway. [SPEAKER_03]: And I'm just like, what the fuck are you talking about dude? [SPEAKER_03]: What, what does that mean?
[SPEAKER_03]: Oh, the judges can disagree on how a standard is applied. [SPEAKER_03]: Therefore, the standard we use doesn't matter. [SPEAKER_03]: Like, right, who the burden is on, whether it's on the prosecution or on the aggrieved party just doesn't matter? [SPEAKER_03]: Like, that is, that's fucking nuts. [SPEAKER_03]: Like, that doesn't track at all. [SPEAKER_03]: Like, it makes no sense. [SPEAKER_03]: It doesn't hang together.
[SPEAKER_03]: It just feels very, it feels like he was like drunk writing this. [SPEAKER_01]: Like he took a dog pill. [SPEAKER_03]: Yeah, like he was dog-pilled up. [SPEAKER_03]: Dude took his dog's anxiety meds and wrote an opinion. [SPEAKER_01]: So relatable, you know exactly the headspace. [SPEAKER_01]: You can really empathize with the man, Michael. [SPEAKER_04]: Maybe he was drunk, perhaps even engaging in homosexual activity.
[SPEAKER_01]: No, this is totally like Supreme Court justice, like technical process, getting lost in the sauce brain. [SPEAKER_01]: You know, like very like, well, the procedure over here could be like this and the procedure over here could be like that and differing minds, but still reasonable minds by disagree. [SPEAKER_01]: And it's just wait, what was your point? [SPEAKER_01]: It's just nonsense.
[SPEAKER_04]: Sometimes when Libs sign on to a conservative opinion, and they know it, they want to do this sub-conscious justification thing. [SPEAKER_04]: And so they write an opinion that's basically designed to be like, well, this is all quite complicated. [SPEAKER_01]: And I'll see you guys later. [SPEAKER_01]: Yeah, that's a good idea. [SPEAKER_01]: That's a good idea. [SPEAKER_04]: They just sort of fade away and you're like, what was that? [SPEAKER_01]: 1,000%.
[SPEAKER_03]: Right, after all that throat clearing at the end, he's like, oh, and also, by the way, [SPEAKER_03]: I agree with you know the chief justice about why this error was was harmless and it's like what it really comes down to is he's just like yeah this guy was guilty though yeah yeah like like yeah I think that's really what's happening here Steven's just kind of like come on we all know this guy's guilty
[SPEAKER_03]: Like yeah, what are we doing here and if you think about it even for one second like sure maybe there is other evidence available right and you can't discount that but If this guy is hanging his entire defense on it was an accident his credibility [SPEAKER_03]: in his testimony is going to fucking matter exactly. [SPEAKER_03]: And so impeaching that credibility is an important tool in the prosecutors toolkit.
[SPEAKER_03]: And if they're violating the Constitution in order to impeach his credibility, that's a big deal. [SPEAKER_03]: Like that is like from an actual trial perspective, [SPEAKER_03]: That is a big deal. [SPEAKER_03]: Like in teaching his credibility is a big goal here. [SPEAKER_03]: And the way they did it was by violating the constitution, you can't, you can't tell me that's harmless. [SPEAKER_03]: Like, that's just, I don't buy it.
[SPEAKER_03]: I don't care if there was other evidence. [SPEAKER_03]: That's not harmless. [SPEAKER_03]: It's not harmless. [SPEAKER_04]: Yeah, there's a ton of other evidence. [SPEAKER_04]: Goodman, other trial. [SPEAKER_01]: Exactly. [SPEAKER_01]: Any number? [SPEAKER_03]: Go get the, go, go get the fucking conviction cleanly. [SPEAKER_03]: Like, [SPEAKER_01]: Exactly, exactly.
[SPEAKER_01]: And multiple of the lower courts, the, the, the appellate courts that agreed with Brecht, right, said, this is exactly it Brecht's credibility on the stand is compared to the rest of the evidence with which other courts said it's like not overwhelming wasn't that much the defendants credibility on the stand is like maybe the deciding thing that [SPEAKER_01]: to the jury, you know, is dispositive one way or another, is he believable?
[SPEAKER_01]: Do we believe what he's saying that this was an accident and multiple of the courts that agreed with Brecht say the prosecutor attacked this huge piece of evidence, his credibility, [SPEAKER_01]: by violating his constitutional rights. [SPEAKER_01]: Of course, this was important. [SPEAKER_01]: How could this be harmless error? [SPEAKER_01]: This is the harm they're saying, the constitutional violation led to the conviction. [SPEAKER_03]: Right.
[SPEAKER_03]: Ready, control straight line. [SPEAKER_01]: Exactly. [SPEAKER_01]: So there are a few descents in this case, Justice's White and Oconer have the substantive descents here. [SPEAKER_01]: White says, basically, he's got concerns around the procedure, these new standards that the Supreme Court [SPEAKER_01]: is coming up with in federal habeas.
[SPEAKER_01]: White says, hey, federal habeas, like the rate of habeas corpus, federal statutes that are about habeas and how federal habeas should work, these have existed for a very long time and what this jurisprudence is doing and the decision today is making all of federal habeas a really confused patchwork, he says, [SPEAKER_01]: in which different constitutional rights are treated according to their status, right?
[SPEAKER_01]: So he's saying the same constitutional right is treated differently depending on whether you are going up on direct appeal or you are making a collateral or or or habeas appeal. [SPEAKER_01]: Right? [SPEAKER_01]: And so he's he's talking about how the Supreme Court here is fucking with decades old in fact centuries old legal framework in all of this patchwork, a ad hoc process way that's demeaning the right of habeas, right?
[SPEAKER_01]: And demeaning the importance of habeas, which is that you have a method to go to court and to say, [SPEAKER_01]: My freedom was taken away from me on the basis of constitutional violations and the federal court has to hear and decide about those constitutional violations, so white is saying, hey, hold up hold up what the majority is doing here today is
[SPEAKER_01]: slamming this totally off-kilter and creating very confusing and disparate standards all over the board that do not make sense and don't go towards ultimately the the most important purpose here which is protecting the avenue of federal heaviest. [SPEAKER_04]: Sandra Day O'Connor also files a descent. [SPEAKER_04]: She makes most of it about judicial restraint. [SPEAKER_04]: She's basically saying, like, this is an important right.
[SPEAKER_04]: We shouldn't be changing the standard just because we think it fits a little better, right?
[SPEAKER_04]: She's doing this like traditional conservative thing, just saying, [SPEAKER_04]: Courts shouldn't be tinkering with this stuff unless there's like a very specific reason and we don't really have that here It's just that rank was like, oh, this would be better if we change the standard right and she's like, I don't think that's enough She also just doesn't like the idea of lowering the standard.
[SPEAKER_04]: She says quote by tolerating a greater probability that an error with the potential to undermine verdict accuracy was harmful [SPEAKER_04]: The court increases the likelihood that a conviction will be preserved despite an error that actually affected the reliability of the trial, which is just like basic logic, but I do applaud her for getting there. [SPEAKER_01]: Yeah, apparently just Steven's couldn't get there like yeah, it's like right.
[SPEAKER_04]: If you lower the standard, then like some cases will get through where it [SPEAKER_04]: would have impacted the outcome. [SPEAKER_04]: Right. [SPEAKER_04]: More cases will get through where it would have impacted the outcome. [SPEAKER_04]: Yeah, it's just it's very it's very standard Aocon or she had a phase where the way she talked was like everything was like an economic analysis.
[SPEAKER_04]: She's like this will lower the probability of [SPEAKER_04]: Yeah, this is a high cost versus Yeah, there was like seven years there where every opinion she wrote had a lot of this I don't know what the fuck was going on some law and economic stuff Yeah, there are a couple other dissents suitor and black men both right dissents that are like one line each there like I agree with so and so That's like an order factor It's the time I think we should bring that back.
[SPEAKER_04]: Yeah, were you just like chime in you like I agree Yeah, plus one Yes, that's one. [SPEAKER_03]: Yeah, you don't always do it. [SPEAKER_04]: It's like an extra agree. [SPEAKER_04]: It's like, you know, it's just like a little bit of emphasis [SPEAKER_03]: of 100 emoji on the text message. [SPEAKER_01]: Let justice have emoji react. [SPEAKER_01]: Yes. [SPEAKER_04]: I want to say a couple of things big picture about this harmless error idea.
[SPEAKER_04]: Like the whole concept is that sometimes the trial court will make a mistake. [SPEAKER_04]: The violates your constitutional rights and then another court will analyze the mistake and try to determine whether it impacted the verdict. [SPEAKER_04]: Right? [SPEAKER_04]: Try to determine whether it was harmless or not. [SPEAKER_04]: and the point of this is really just efficiency, right? [SPEAKER_04]: They want to avoid having another trial every time there's an error, right?
[SPEAKER_04]: That would just be too much for the system to bear. [SPEAKER_03]: Too much to expect the courts to respect your constitutional rights. [SPEAKER_04]: Yeah, come on. [SPEAKER_04]: I'm just like, I'm just not sure that the court doing this, [SPEAKER_04]: should even be considered constitutional, because you have a constitutional right to trial by jury, right? [SPEAKER_04]: And now you have the court essentially acting as the jury, right?
[SPEAKER_04]: They're like trying to guess what the jury would have done in a different situation, right? [SPEAKER_04]: Which means they're really just like pretending to be the jury and substituting their own judgment for the juries. [SPEAKER_04]: I just think that whole framework robs you of your right to a trial by jury, like we have this situation where there's been a mistake, everyone agrees that there's likely been a constitutional evaluation here.
[SPEAKER_04]: We don't know how the jury would have handled it. [SPEAKER_04]: And the court's like, okay, let me just pretend I'm the jury for a second. [SPEAKER_04]: What would I have done, right? [SPEAKER_04]: Like, still guilty. [SPEAKER_04]: Yeah. [SPEAKER_04]: No, it's okay, we're fine. [SPEAKER_04]: Like, call me a stickler, but I don't think that should be allowed. [SPEAKER_04]: That doesn't sound like you're actually getting a fair jury trial.
[SPEAKER_03]: it interferes with the jury process both in the way you're describing and in the fact that like in the case of this instance on these facts, the jury is given improper instruction, right? [SPEAKER_03]: The jury is not given the right information to consider.
[SPEAKER_03]: So it's sort of interfering with your jury trial rights twice over, once by misinforming the jury and then by just having some [SPEAKER_04]: Right, you know, what's the difference between this and like they accidentally are like one jurors short and no one notices until after the verdict right and like rank was comes in being like come on. [SPEAKER_04]: I think I think you would have agreed with the others. [SPEAKER_04]: Like what what is preventing that from happening right now.
[SPEAKER_04]: I think it's just so obviously fucking bullshit it's such it's such an obvious violation of your right to a jury trial. [SPEAKER_04]: Right. [SPEAKER_01]: Yeah, there's so many problems with this. [SPEAKER_01]: I think and it brings up so many things that we've talked about before, especially about criminal cases at the Supreme Court. [SPEAKER_01]: Like, I'm really like still stuck on like the guy's gay. [SPEAKER_01]: Did you know he's gay? [SPEAKER_01]: Right.
[SPEAKER_01]: Do you know he's gay and he shot somebody? [SPEAKER_01]: He's gay and they told him not to be gay. [SPEAKER_01]: but it was like it's such a tell where their politics are and how they feel about people that they believe are less than them, people that they believe are gross or monsters or inherently violent and who should be locked up. [SPEAKER_01]: This whole case just reeks of that is dripping with that that it's going to be so results oriented.
[SPEAKER_01]: We're going to create a standard where we're talking [SPEAKER_01]: We're deciding that a constitutional violation did not harm this person, did not prevent them from getting a fair trial, violated the constitutional rights multiple times in different ways because we hate this person. [SPEAKER_01]: We believe the law should be weaponized against them. [SPEAKER_01]: We're going to use our power to do that, right?
[SPEAKER_01]: Todd brecht, the renquist thinks should be in prison for life, if not given the death penalty, if I'm thinking like renquist thinks. [SPEAKER_01]: So, nothing, no constitutional violation for a renquist is going to be actually harmful. [SPEAKER_01]: It's going to be something that like rises to the level of something that renquist loses sleep over or just fucking cares about for five minutes.
[SPEAKER_01]: you know, and that it's just like all up and down this case through and through, whether it's the way they're talking about this person in the beginning when they're running down the facts, which fuck you Stevens and anybody else, like Stevens joins the opinion, right? [SPEAKER_01]: And like whatever, that's like the most evil thing. [SPEAKER_01]: But when justices can occur, they can like say like what sections they're like agreeing with and stuff.
[SPEAKER_01]: Like this first [SPEAKER_01]: And homophobic and just nasty. [SPEAKER_01]: And Stevens, like, this lib is signing on to this. [SPEAKER_01]: And so, yeah, it's just such a tell on how they feel about people who they think are like deserving of ostracization, or deserving of isolation, or deserving of the might, the full power of state violence being used against them. [SPEAKER_01]: And it doesn't matter to them that their constitutional rights were violated along the way.
[SPEAKER_04]: Yeah. [SPEAKER_04]: Imagine being a gay dude in the A's in Wisconsin forced to live with your district attorney brother and law. [SPEAKER_04]: Right. [SPEAKER_01]: It just lectured every single day about what you're doing and what you're not doing. [SPEAKER_04]: You better not keep a gun in the house, you do that to me. [SPEAKER_04]: You know. [SPEAKER_04]: It's just, yes.
[SPEAKER_04]: And then the brother-in-law gets painted like his brother who's a district attorney, but who paid restitution for him to get him out of prison. [SPEAKER_03]: Now the whole thing is look at this deviant felon drunk. [SPEAKER_03]: Yeah, who doesn't even appreciate his upstanding district attorney brother-in-law. [SPEAKER_03]: Yeah, helped pay to get him out of prison in shot-up. [SPEAKER_03]: Yeah, that's that's Barry this guy under the prison, right?
[SPEAKER_04]: There's another district attorney we should be focusing on. [SPEAKER_04]: The one who violated this man's constitutional rights. [SPEAKER_00]: Yeah, exactly exactly that's like actually that's actually the issue here. [SPEAKER_03]: Also, I want to I do want to say we talk about this all the time. [SPEAKER_03]: Like your constitutional rights to the extent they are protected by case law.
[SPEAKER_03]: It is usually by people who have done something bad or at least likely done something bad Who have been alleged to have done something very bad, right? [SPEAKER_03]: Like that is these cases always have facts like this. [SPEAKER_03]: Like that's always that's there if the facts are always bad Otherwise there wouldn't be a case to deal with right and like something happened Someone was involved and there was a tragedy somebody died. [SPEAKER_01]: It's horrible.
[SPEAKER_03]: It's always like this. [SPEAKER_03]: So yeah [SPEAKER_03]: So, fuck off, right? [SPEAKER_03]: Like, that's, it doesn't matter. [SPEAKER_03]: Like, when matters is, was whether the constitution that protects all of us protected this guy as well here, right?
[SPEAKER_01]: Yeah, and we would be remiss if we didn't talk about the way that harmless error affects and is a huge part of death penalty cases, particularly when on habeas review, justices are looking at the constitutional violations that are alleged to have happened in a defendant's case, and that person was sentenced to death, and
[SPEAKER_01]: in habeas review over and over and over again all of the time judges are saying those constitutional violations were harmless and this death sentence still stands.
[SPEAKER_01]: There was a study reported on in the appeal a few years ago a study of death penalty appeals in the state of california [SPEAKER_01]: That study found that during a 10-year period, roughly 90% of death sentences that were imposed by trial courts were upheld on appeal, even though nearly 75% were infected by constitutional error. [SPEAKER_01]: There was constitutional violations in 75% of the cases that were upheld on appeal. [SPEAKER_01]: Death cases. [SPEAKER_04]: Death cases.
[SPEAKER_04]: that all of this is meant to skirt around is that no one knows how to dull out actual justice efficiently so they've opted for just maximum brutality, right? [SPEAKER_04]: They've opted to sacrifice justice for efficiency. [SPEAKER_04]: Yeah. [SPEAKER_04]: And that's what gets us here, right? [SPEAKER_04]: They don't know how to conduct a full trial and grant someone their constitutional rights effectively. [SPEAKER_04]: They don't know how to do it.
[SPEAKER_04]: They can't do it at scale. [SPEAKER_04]: that is like running under a huge amount of jurisprudence at the Supreme Court, especially in these cases. [SPEAKER_04]: And that's why they come up with this doctrine, like, ah, it's okay. [SPEAKER_04]: Armless, harmless, harmless. [SPEAKER_04]: It's just a way to skirt around the fact that they don't know how to effectively dull outjustice. [SPEAKER_04]: They don't know how to do it. [SPEAKER_04]: There aren't enough resources put into it.
[SPEAKER_01]: Yeah, and just, you know, to put this in more of a historical context, right? [SPEAKER_01]: We're talking about through the 70s, Nixon's War on Crime. [SPEAKER_01]: We're talking about the boom in death sentences in the 70s, in the 80s, and by that time, we're out of the war in court.
[SPEAKER_01]: War in court has, you know, done some landmark very important cases to try and protect defendants, uh, constitutional rights and criminal cases, but then you have burger court, and you have the renquist court. [SPEAKER_01]: And they're not protecting those rights anymore, right? [SPEAKER_01]: Instead, they are changing the consequences of unconstitutional trials, of constitutional violations.
[SPEAKER_01]: They're tinkering with all of that so that the mass incarceration, this death machine, it's just like full steam ahead. [SPEAKER_03]: You know, I recently watched the Shawshank Redemption, which is a phenomenal movie, beloved movie. [SPEAKER_03]: So beloved, it's been the number one rated movie on IMDB for like over a decade straight. [SPEAKER_03]: Like this is Americans love this fucking movie. [SPEAKER_03]: People love this movie.
[SPEAKER_03]: It was panned when it came out in the early 90s. [SPEAKER_03]: Critics fucking hated it and it did really poorly. [SPEAKER_03]: And do you know why? [SPEAKER_03]: You can read the reviews [SPEAKER_03]: That was, that was, that was the culture in the 80s and 90s, is like, oh, this fucking movie, was it a feel bad for prisoners? [SPEAKER_03]: Oh my god, fuck this movie. [SPEAKER_03]: That was the tenor of reviews around this beloved movie.
[SPEAKER_03]: That's the culture in which to understand, in opinion like this, and statistics like that. [SPEAKER_03]: It's a culture of like, fuck these people. [SPEAKER_03]: Like, well, we're supposed to do another trial, just because we violated the constitutional rights. [SPEAKER_01]: for this guy? [SPEAKER_01]: No. [SPEAKER_01]: No way. [SPEAKER_04]: Yeah. [SPEAKER_04]: Andy DeFran, who is okay. [SPEAKER_04]: The other way. [SPEAKER_01]: A new trial for a gay man.
[SPEAKER_04]: Oh, you escaped to Mexico with your friend. [SPEAKER_03]: The guy who played opera for all the prisoners? [SPEAKER_03]: Oh, come on. [SPEAKER_04]: Okay, but did he kill his wife or you, allegedly, he killed those at the wife or the boy friend? [SPEAKER_04]: It boasts, it's okay. [SPEAKER_04]: Okay, that's okay. [SPEAKER_04]: But he did not kill either. [SPEAKER_04]: Double homicide. [SPEAKER_04]: That's how hard it was to be gay back in like the 30s or whenever it was set.
[SPEAKER_04]: You had to kill your wife and her boyfriend and then escape prison with your lover. [SPEAKER_01]: So harmless air clearly has very much fucked with federal habeas. [SPEAKER_01]: But taking a step back, we haven't even talked about how difficult it is to get to the point that the procedural posture in a case where you're even in federal court on your habeas case. [SPEAKER_01]: There are so many burdens to even getting here. [SPEAKER_01]: So, to get into federal court.
[SPEAKER_01]: on a criminal appeal. [SPEAKER_01]: You're trying to get your conviction overturned. [SPEAKER_01]: If you were convicted, if you were prosecuted in state court, first you have to go through all of the appeals in state court. [SPEAKER_01]: First, you have to exhaust all of your appeals. [SPEAKER_01]: So you would go through direct appeal in state court. [SPEAKER_01]: Some states have separate state habeas proceedings that you would have to go through.
[SPEAKER_01]: And by the way, every time you appeal in an every case, you have to make sure that you don't miss [SPEAKER_01]: you have to bring up every violation that you're going to bring up every argument you've got you have to say at every step. [SPEAKER_04]: What that means in practice, by the way, is like if you were constitutional rights are violated. [SPEAKER_04]: at your trial and then you appeal and you don't bring that issue up, right?
[SPEAKER_04]: It's deemed waived in most cases, right? [SPEAKER_04]: You've just waived it, even though you're right through a violated, you can't bring it up later. [SPEAKER_04]: You had your chance. [SPEAKER_04]: That's it. [SPEAKER_01]: Exactly. [SPEAKER_04]: Another rule that's basically all about like efficiency or something. [SPEAKER_01]: No, and courts will say you don't get two bites at the apple, like this is the legal justification for having these rules.
[SPEAKER_04]: That's a great metaphor, by the way. [SPEAKER_04]: You get two bites at every single other apple in this world. [SPEAKER_01]: But... And yeah, in what real world situation are you actually limited to one bite at the apple? [SPEAKER_01]: That's not realistic. [SPEAKER_03]: Our producer just put in the chat. [SPEAKER_03]: Apples are literally like 20 bites. [SPEAKER_01]: Yeah, every single one of them.
[SPEAKER_04]: Yeah. [SPEAKER_04]: That's just what you say to someone that you're like abusing. [SPEAKER_04]: Like, you only get one bite at the apple. [SPEAKER_01]: of you guys see those videos of like straight couples. [SPEAKER_01]: Same more. [SPEAKER_01]: They will be having dinner at the at the like woman's family's house. [SPEAKER_01]: And the woman will like turn to her partner, her boyfriend or her husband or whatever. [SPEAKER_01]: And be like, are you happy?
[SPEAKER_01]: Like I didn't eat a lot. [SPEAKER_01]: I only had I only have two bites. [SPEAKER_01]: You're proud of me, right? [SPEAKER_01]: Like just like as a prank. [SPEAKER_01]: You're like right. [SPEAKER_01]: Can I can I have seconds? [SPEAKER_00]: Like as a prank? [SPEAKER_00]: Like. [SPEAKER_00]: in front of her family. [SPEAKER_00]: She's acting like her partner doesn't let her eat. [SPEAKER_05]: Oh, my God. [SPEAKER_00]: Anyways, I don't know if that's funny or not.
[SPEAKER_00]: Um, but. [SPEAKER_04]: She's a great gag if you hate men. [SPEAKER_01]: Anyways. [SPEAKER_01]: So you have to have exhausted every opportunity you have to challenge your conviction on every possible grounds that you might have in order to even knock on the door of federal habeas court in order to file that writ of habeas corpus and have a federal court here what are your federal constitutional claims.
[SPEAKER_01]: It is a massive burden and then on top of that we talked about [SPEAKER_01]: all of the various mechanisms, procedural burdens, procedural techniques, tactics to get thrown out of court that the Supreme Court has invented and imposed on federal habeas. [SPEAKER_01]: And here you just have a huge one. [SPEAKER_01]: You have a huge one.
[SPEAKER_01]: It's really hard to describe how harmless error review [SPEAKER_01]: permeates through all of criminal law, all criminal defendants, and especially I think you just see how acute, how acutely unjust it is on death penalty cases. [SPEAKER_04]: Yeah. [SPEAKER_04]: There's a situation in Florida like a decade ago where like 100 something people were going to have their sentences reevaluated, and courts just addressed that by saying that they [SPEAKER_01]: Yeah, dead sentence cases.
[SPEAKER_01]: Yeah. [SPEAKER_04]: A lot of the problem there was that they had they had a non-unanimous jury rule, right? [SPEAKER_04]: So you could convict someone on like a 10 to 2, right? [SPEAKER_04]: You didn't need every juror. [SPEAKER_04]: And so the concern was well, do we actually need in order to protect their rights to have a unanimous jury rule, right? [SPEAKER_04]: And then, of course, for real re-evaluating those and saying, [SPEAKER_04]: Well, it's harmless error.
[SPEAKER_04]: This one was 10 to two. [SPEAKER_04]: It needs to be unanimous harmless error, which I earlier, I made the joke about the missing juror, but that actually is what happened. [SPEAKER_04]: That's literally the pieces. [SPEAKER_04]: Yeah. [SPEAKER_03]: Yeah. [SPEAKER_03]: In 170, I think, right? [SPEAKER_03]: Something like that. [SPEAKER_03]: Yeah, something like that. [SPEAKER_03]: Same number. [SPEAKER_04]: So before we go.
[SPEAKER_04]: Our producer has asked, like, what is an example of an actually harmless error in opinion? [SPEAKER_04]: I think, at the end of the day, if it's a constitutional violation, it's hard for me to imagine that it could be harmless, right? [SPEAKER_04]: You can imagine a super-minor one in certain contexts, but I'm not sure that anything comes to mind. [SPEAKER_04]: Harmless error would be, like, the prosecutor's bills his soda on you. [SPEAKER_04]: Yeah, something like that.
[SPEAKER_04]: Right. [SPEAKER_04]: Yeah, maybe the prosecutor accidentally says, hi, do you in the hallway not realizing that you're the defendant, right? [SPEAKER_04]: Maybe that could be harmless there. [SPEAKER_04]: Something like that. [SPEAKER_04]: Those are my examples. [SPEAKER_01]: I mean, basically harmless would be like it was fixed. [SPEAKER_01]: So there was like the judge read a paragraph of. [SPEAKER_03]: Right. [SPEAKER_01]: the wrong jury instructions.
[SPEAKER_01]: But then said, oh, it's not these instructions. [SPEAKER_01]: I've given you the correct instruction, right? [SPEAKER_01]: Like. [SPEAKER_04]: Yeah, but then I wouldn't even consider that error necessarily because it's a right decision thing. [SPEAKER_01]: It's not right, exactly. [SPEAKER_04]: Like the prosecutor saying that is not error. [SPEAKER_04]: The judge failing to realize it and instruct the jury is the error. [SPEAKER_04]: Right.
[SPEAKER_04]: All right, folks, next episode, dropping in just a couple of days, Louisiana V. Calay, about the demolition, the continued demolition of the Boating Rights Act by this court. [SPEAKER_04]: Call us on social media at 545 Subscribe to our Patreon, patreon.com slash 545, all spelled out for access to premium and add free episodes, special events, our Slack source of shit. [SPEAKER_04]: See you in a couple of days. [SPEAKER_01]: Bye, y'all.
[SPEAKER_03]: Five to four is presented by prologue projects. [SPEAKER_03]: This episode was produced by Allison Rogers. [SPEAKER_03]: The onafoc provides editorial support. [SPEAKER_03]: Our website was designed by Peter Murphy. [SPEAKER_03]: Our artwork is by Teddy Blanks at Chips and Y. [SPEAKER_03]: And our theme song is by Spatial Relations.