[00:00] Introduction: Welcome to Registry Matters, an independent production. Our opinions are our own. We’re thankful for the support of our patrons. You make what we do here possible. Your involvement makes a difference every week. And always remember, F.Y.P.
[00:23] Andy: Recording live from F.Y.P. Studios East and West, transmitting across the internet. It’s just us tonight, Larry. Larry, this is episode 378 of Registry Matters. What is up, my friend? How are you? Well, doing awesome. Glad you had me back for this one last episode. Well, I went down, I went down, Ron, Paul, Ringo, John, Tom, Dick, Harry. I went down the whole list and nobody was available and you were last. And I got to you and you said yes, again. What about that guest we had last week? Did you invite him back? I called Jerry also, and Jerry said F.Y.P. Please head over and show your support by hitting like and subscribe and five star ratings and thumbs up on this episode and all that jazz. So maybe some other folks will find out that we exist because our audience is relatively small compared to the approximately million people that are on the registry, give or take maybe 750,000, and that would be awesome. If we could have some more folks that are impacted by the registry listening to the program without further ado, then Hey Larry, what are we doing tonight? Well, we have a case from the Michigan Supreme
[01:38] Larry: co-op. Can you pronounce co-op? That’s pretty close. It’s a nice victory for the PFR community. And also we’re going to discuss a few general rules for those under any type of probation or parole supervision.
[01:56] Andy: Okay. Can we just follow the rules and let it go? Now we’re done with that segment.
[02:06] Larry: No, I think it needs a little bit more detail and suggestions because some of these things people are apparently struggling with.
[02:14] Andy: Right. Well, tell me what the situation is that has you all fired up.
[02:19] Larry: A person here in New Mexico who’s under supervision has decided that he does not like his assigned PO and went to the supervisor and requested a different PO.
[02:32] Andy: Now, look, I’ve got to be snarky. So you know, when you go to college, they try to match you up with a roommate that sort of blends with your personality. They don’t do that when you’re on supervision.
[02:44] Larry: I think there’s a slight difference in college. You’re paying a significant amount of money to be there by choice and they’re benefiting from your presence. And I guess you could make the same argument here, but in this particular instance, you’re being punished and while you’re being punished, you don’t have as much leeway over who inflicts the punishment. Wouldn’t that be a great system? It’s kind of like I’ve asked the question: wouldn’t it be a great system if you could move from one state to another and extinguish the obligations that the imposing state applied to you? People write that letter all the time. They say, well, I’ve got 20 years parole. If I go from here to there, will I get less time? No, no, you won’t. Well, same thing when you’re under supervision—you’re being punished and you don’t get to pick who administers the punishment.
[03:39] Andy: Well, so what’s the underlying issue then? Does he not like the PO for some reason?
[03:47] Larry: He does not. He believes that she’s out to get him and from talking to him, she probably is.
[03:53] Andy: Why would a PO be out to get someone? What benefit would there be in that?
[04:02] Larry: In this particular individual’s case, he’s a frequent flyer in the judicial system. He has about 20 cases that I’ve located in our state judicial beta database. Are they all PFR type offenses? No, actually, I think I sent you the sheet that you were going to take a look at. They run the gamut from DWI, contributing delinquency of a minor, providing alcohol to a minor—you name it. He’s done it. Did you get a chance to clean it up?
[04:36] Andy: Oh yeah. It’s up on the screen. It’s 19 incidents dating back to maybe around 2010. And then there’s a 2019 one. I’m sure there’s another more recent than that. So yeah, he’s got quite an extensive list of interactions with the judicial system, not even law enforcement.
[05:00] Larry: Since being released, but you name it, he’s done it. Let’s just go ahead and get to the details later. Is he on parole now? Yes, he is on parole, but that term is misleading because our law requires one to serve their entire sentence prior to being released on what they call “parole.” It’s really a second sentence following the term of incarceration, similar to the system in Illinois and the federal system. So if you get 10 years hypothetically and are under the 85% rule that you serve 85%, you’ll serve eight and a half years. Or if you’re under the 50% rule for some offenses, you’ll serve that amount of time. Then you complete that sentence. You kill that number. Then you roll into this period for most PFR offenses of indeterminate post-prison supervision, but they call it parole because they wanted to put it under the control of the parole board, which was already in place to supervise former offenders. Well, we used to have a system where you got out early and it was truly parole. So our system is a joke and it’s unconstitutional,
[06:18] Andy: It is what we have. And so you’re saying he has requested a new PO. So what’s going on at this point? Yes, he’s requested
[06:28] Larry: a new PO. He called the supervisor pretty resourceful. He navigated the website and found out who that person reports to, which they don’t make it easy as can be to find out who the supervisors are. And he called and demanded that his PO be admonished because of the perceived mistreatment and injustice. There was a meeting Wednesday with the supervisor and his existing probation officer, and he’s optimistic that something good is going to come from that meeting because it’s the right thing to do. I’m pessimistic and expect that he may have shot himself in the foot by requesting that.
[07:17] Andy: What do you think? You’ve been around this system a little bit. Well, the only time I ever talked to the supervisor was when they told me to go see them. Which was actually like part of the nexus of this whole podcast. So visiting supervisors is not the right move unless you really do have a strong legal case and you’re trying to put the screws to them and get them to back off. That’s the only reason I think that I would want to try to talk to the supervisor.
[07:44] Larry: Well, I think with his circumstances being what they are—he has so many encounters with the legal system and since he’s rolled into his parole period, he’s had two previous violations that resulted in a return to prison. And when you combine the frequent flyer nature of his background and those two parole violations, along with the fact that he went to trial instead of taking responsibility for his actions, what they’re seeing is a very not remorseful individual who hasn’t changed much because he’s still breaking rules and can’t conform his behavior. They see someone who is a risk to them, and they’d rather not have to deal with media explaining why he committed another offense, whether it’s a PFR type of offense or not. So I suspect they’re trying to end his supervision and let him serve out his time in prison, which he has only 12 years left on because he’s already served eight of his indeterminate period between time spent in the community and time spent in prison. And they give you good time when you’re in the community. So he’s whittled it down to just 12 years. I mean, okay, 12 is still a long time though. Well, I’m not sure if he’s under the 50% rule; if he is, it would be six, but I think he might be under the 85% rule, which would be quite a while to go. But I told him my advice is to be very repentant and remorseful. They’re alleging a GPS violation that he was in two exclusion zones for an unreasonable amount of time, and he’s saying it’s not true. And while I’m clearing my throat, you can explain about GPS and cell towers and how that works and whether it could be challenged.
[09:47] Andy: I think it would be hard. They do fishing expeditions with that stuff where they drag across a whole series of tower boxes and drag all kinds of people into it. They’re just looking for anything. But going the other direction, if they know you were outside your zone, here’s your pro tip, Larry—make sure you have multiple cell phones and keep them all turned on. And then with Google tracking stuff, you’d show up in different places. So maybe you could beat them at that kind of game. I had never thought of that.
[10:36] Larry: But I’m told from legal experts there is some discrepancy in the location data that flows from GPS, but I’ve never had to litigate that. So I don’t know if he’s got anything to hang his hat on, but look at it objectively—if you’re a supervising officer and you’ve had this many encounters with the law and two sustained violations already, it doesn’t put you in a strong position to
[11:09] Andy: be believable. Does it? No, it does not. I can see how that would work against you.
[11:16] Larry: That’s what I told him. I think his best strategy is to the PO is not going to yell at him, even if she does, she’s not going to do it with a supervisor there. The best strategy I think is to be contrite and apologetic and say, Hey, I think I overreacted. I’m pretty sure I overreacted. I called because I was afraid. I don’t believe that I was in those locations and I didn’t know what to do because it seemed like I was going to be sent to prison and I don’t want to go to prison. I’m trying to comply with everything that’s imposed on me so I can get through this. From talking to him, he didn’t seem able to say those words.
[11:55] Andy: Hey, just, I want to bring in someone from chat here real quick. So it says, if you really want to make them mad, just tell them you did nothing wrong.
[12:04] Larry: That’s kind of what he did.
[12:09] Andy: Well, all right then. So your recommendation is to go in there, flip them the two fingers and tell them that they’re number 11.
[12:19] Larry: Well, if you want a vacation, go ahead and do that. They have a bed waiting for you. They’ll keep the light turned on for you all 24 hours.
[12:29] Andy: What I’m told is there’s noise all the time. God, it’s just a miserable environment. All right, we shall move along. You people haven’t used the “you people” expression in quite some time. Do you want to discuss this case from the Michigan Supreme Court? And I’ve read it. We actually had a serious thunderstorm warning with lightning and all that stuff. It came in while I was reading it outside with your papers. I’m not sure I understand it. The name of the case is People of the State of Michigan v. Gary J. Shaver Jr. Are you giddy? Does this mean it’s finally good news, and we can change Dr. Doom and gloom to something more positive?
[13:16] Larry: It’s a very compelling win and has the potential to provide relief to all those in Michigan who are affected.
[13:26] Andy: I’d say it’s good news. So, let me set it up. In 2004, Gary J. Shaver Jr. was sentenced as a juvenile for three counts of third-degree criminal sexual conduct under the version of Michigan’s PFR registration in effect at the time. Shaver was required to register and notify law enforcement of any change of address within 10 days. In August 2010, Shaver was convicted of failure to comply with SOAR registration requirements. Approximately one year later, the 2011 version of SOAR went into effect, shortening the reporting period for address changes from 10 days to three business days. What happened after that?
[14:09] Larry: Well, in September of 2015, Shaver planned to move into a new home and he had updated his address with law enforcement. However, due to unforeseen circumstances, which I’ll reveal further down in the program, Shaver was unable to move into a new home as planned and his registered address was incorrect for a total of 19 days.
[14:34] Andy: Did I hear that correctly? He was out of compliance due to his diligence of trying to stay in compliance? You did. And I hope you will finally admit that that’s funny. That sounds confusing, except it’s not funny, of course. Except for it’s not funny to a deranged person like yourself, will you please keep going?
[14:53] Larry: Are you ever going to admit that something’s funny on this program?
[14:59] Andy: No. I’m going to let you go off into your grave, never having admitted something’s funny.
[15:05] Larry: If a
[15:05] Andy: person’s trying to be
[15:06] Larry: diligent and notify you in advance of an address change, but if they forget about it and hope it works itself out, and get prosecuted for trying to be diligent, that is not funny.
All righty, then. Shaver pleaded guilty to failure to comply with the 2011 SORO registration requirements as a second offense. And also, that was his fourth felony under Michigan’s habitual offender statute, which means he had four felonies total. He was sentenced to six months in jail followed by five years of probation.
Following his release from jail, Shaver pleaded guilty to a probation violation and received a sentence of 40 months to 15 years in prison. They don’t seem to mess around in that county, Michigan.
[16:05] Andy: do not. So Shaver sought relief because of the Michigan Supreme Court decision in People versus Bets. Tell us what that decision was about. We’ve
[16:17] Larry: talked about it on the podcast, but many people have forgotten about it. In People versus Bets, the Michigan Supreme Court held that the 2011 SORO in its entirety amounted to an ex post facto punishment of registrants whose offenses were committed prior to the 2011 amendments. And based on that, Shaver moved for relief, asking the Tuscola County Circuit Court to apply Bets retroactively and vacate his 2015 conviction for failure to register.
You’ve got to see his logic in that. Right? If you’re convicted under an unconstitutional law that shouldn’t have ever been applied to you, it’s very logical that you would ask that the conviction be vacated, particularly if you’re still suffering disabilities like a 40-year sentence.
The amazing aspect is that Judge Amy Gerhardt granted Shaver’s motion without even affording the prosecution an opportunity to respond and then denied the prosecution’s motion for reconsideration. Now, maybe you could admit that’s funny.
[17:23] Andy: All right. That’s slightly,
[17:24] Larry: just a wee bit funny. Then the prosecution appealed and the Court of Appeals reversed Judge Gerhardt, holding that the trial court erred by failing to give the prosecutor appropriate time to respond and by holding that bets applies retroactively. I can see that you’ve got to give the state an opportunity to respond. I can see their angst. I can see their anger about that, but they were not exactly where they needed to be on the retroactivity part. But yeah, I can see them being irritated that the trial judge said, “I’m not going to,” but this is a clear cut case, even if it is clear cut, you’ve got to give the other party an opportunity.
[18:04] Andy: So, before we get so deep into this, can we explain the evolution of the registration scheme in Michigan?
[18:10] Larry: We can, if you don’t mind reading a condensed version of it, because it’s too much for my old eyes to read.
[18:19] Andy: Okay. The Michigan legislature enacted SORA in 1994 with the goal of preventing the commission of future criminal sexual acts by convicted offenders. The first version of SORA created a computerized database. Can you tell me of a database that’s not computerized, Larry?
[18:37] Larry: Not really.
[18:40] Andy: All right. So, they created a database where computers were involved that was confidential and accessible only by law enforcement. It required individuals convicted of certain PFR type offenses to register for the database and to notify law enforcement of address changes. Since 1994, the legislature has amended SORA several times, increasing the availability of the registry to the public and expanding the breadth of information registrants are required to provide to law enforcement. In 1997, for example, SORA was amended to require the Department of State Police to maintain a separate computerized database consisting of certain information about registered individuals. This compilation was to be made accessible to members of the public for in-person viewing during business hours, and the department was also authorized to make the information available to the public through electronic, computerized, or other accessible means. Two years later, SORA was amended to require that the compilation be made available to the public by electronic, computer, or similar means, and to provide for both a search by name and a search by zip code. In 2011, the law was amended to require the department to maintain a public internet website containing certain specified information for registered individuals and to make the website available to the public by electronic, computerized, or other similar means. At this point, information including a registrant’s name, address, and photograph became available at the touch of a button. I’m sure there’s other stuff just besides name, address, and photograph, but what was the significant change? What was the significant change in 2005, if you don’t mind explaining that?
[20:22] Larry: In 2005, they got bolder. They increased restrictions imposed by SORA. Remember, nobody bothered to read Smith vs. Doe. It was constitutional because it didn’t impose any disabilities or restraints, but they imposed restrictions through amendments that became effective in 2006. The 2006 SORA created student safety zones, which prohibited most registrants from living, working, or loitering within 1,000 feet of a school. And there was another change in 2011, which was part of the litigation that the ACLU did. A series of significant amendments to SORA became effective in 2011, and for the first time, registrants were classified into three tiers of offenders. Tiers were assigned based on an individual’s registrable offense. Generally, the course of conduct that fell under Tier 1 was less extreme than conduct categorized under Tier 3. Remember, it’s an offense-based system when you talk about tiers. It’s not based on actual risk. Reclassification of offenders in the tiered system also resulted in longer registration periods for certain offenses, and the law made offenders’ tier classifications available on the website or that computerized database to the public, which told people they didn’t understand it. The Tier 3 classification led people to think this person must have just offended yesterday. No, they could have been offended 20 years ago, but it was what they did that put them in Tier 3, not their risk.
[22:37] Andy: Well, let’s circle back to the issue that caused Shaver to be prosecuted. In 2015, Shaver was planning to move to a new home. He notified law enforcement and updated his address. However, the previous tenant of the dwelling was in the process of being evicted and continued to occupy the space beyond their designated date of departure. As a result, Shaver was unable to move into the new home as planned. Shaver hoped that the problem would be resolved and that he would be able to move into the home before anyone noticed the discrepancy. Well, unfortunately for Shaver, the problem was not resolved and someone did notice. Shaver’s address was incorrect for a total of 19 days between September 10 and September 29, 2015.
[23:18] Larry: It’s not known how, but during this period, law enforcement became aware that Shaver was registered at the wrong address. Now, remember, these are the people that are understaffed and overworked, all that kind of stuff we hear, but somehow or another they found out. And in November 2015, the Tuscola County Prosecutor charged Shaver with failure to comply with registration requirements under the 2015 law. In 2016, Shaver pleaded guilty to failure to comply with SORA Registration Requirements Second Offense and Fourth Offense Habitual Offender.
[23:56] Andy: There was a COBS evaluation for a sentence cap of no more than one year in jail plus probation. Accordingly, on March 21, 2016, the trial court sentenced Shaver to six months in jail and five years of probation. He did not file a direct appeal. So I’ve never heard of a COBS evaluation. What’s a COBS evaluation? A COBS evaluation, I had to do a little research on this.
[24:19] Larry: I did some research and asked AI. Also called a COBS agreement, it’s a unique legal tool in Michigan that allows a defendant to get a preliminary sentencing preview from the trial judge before entering a guilty plea. It’s named after the Michigan Supreme Court case of People v. COBS, decided in 1993, which established the right to such a preview. The trial judge does not participate in the plea negotiations but makes a preliminary evaluation of the sentence based on the case facts and the defendant’s criminal history. This statement is placed on the record at the time the plea is entered. At sentencing, the judge can impose a sentence within the statutory range, meaning up to the maximum. However, if they impose a harsher sentence than what was previously stated, the defendant generally has the right to withdraw their plea and demand a trial.
[25:21] Andy: I’ve never heard of that before. So how did he do on probation? Well, kind of like our guy here in New Mexico, Shaver violated the requirements of his probation by causing $400 worth of damage to a motel room. Now, that tells me he was likely homeless, doesn’t it?
[25:29] Larry: Yeah, it does.
[25:49] Andy: I mean, sure. But what did he do in the hotel room? Did he steal the light fixture?
[25:55] Larry: They didn’t say. And in November 2016, Shaver pleaded guilty to a probation violation and was sentenced to 40 months on the low end of an indeterminate sentence ranging from 40 months to 15 years. This is real parole when you talk about an indeterminate sentence.
[26:11] Andy: Real parole. So this imposition of the sentence is how Shaver got into this situation? That’s correct. He got into that situation by getting
[26:24] Larry: This 40 months to 15 years sentence came about by busting up the bathroom.
[26:32] Andy: On March 28th, 2022, with the assistance of counsel, Shaver moved for relief from judgment, asking the Tuscola County Circuit Court to apply Bets and to vacate his 2015 conviction for failing to register as required under 2011 SORA. What did the trial court do? Well, surprisingly,
[26:53] Larry: As I said earlier, the trial court granted Shaver’s motion for relief from judgment on April 4th, 2022. That’s a quick turnaround, March 28th to April 4th, without affording the prosecution an opportunity to respond to his motion. That’s a big no-no. The court vacated Shaver’s conviction and sentence. Dismissing the case was prejudiced. The prosecution moved for reconsideration, arguing, one, that the trial court did not have the authority to grant relief from judgment without first directing the prosecution to respond to the motion within 56 days required under the Michigan Compiled Rules of Civil Procedure, and two, that under Bets, any relief under Bets should be prospective in nature, meaning it didn’t apply to him. The trial court denied the motion for reconsideration. Now, you got to admit it. That was funny. The trial court was determined that this was garbage.
[27:45] Andy: Yeah, no doubt. And the prosecution disagreed and sought leave to appeal in the Court of Appeals? What did the Court of Appeals do? They granted that leave to appeal.
[27:56] Larry: The Court of Appeals reversed the trial court’s order in a published opinion. Shaver then sought leave to appeal to the Supreme Court, arguing that the Court of Appeals erred and concluded that Bets did not apply retroactively. That’s funny. The state Supreme Court granted the application, directing the parties to address whether the words of decision in Bets applies retroactively to cases that have become final after the expiration of the period for direct review or appeal.
[28:31] Andy: So then the Court stated, while our opinion in Bets made clear that the 2011 SORA was unconstitutional in its entirety. It did not address whether individuals committed to appeal. It did not address whether individuals convicted under the 2011 SORA could obtain relief on collateral review. What does that mean?
[28:48] Larry: Just means that they didn’t make any pronouncement regarding what remedies might or might not be available to those convicted under the law that they were declaring unconstitutional, because that wasn’t before them at that time. So nobody was arguing about what relief would flow if they decided it was unconstitutional. That would have been premature and speculative at that time.
[29:22] Andy: Then the Court stated, This case involves the application of a holding grounded in both the Constitution of the United States and the 1963 Michigan Constitution. Because the decision in Bets arose under both federal and state constitutional law, both federal and state constitutional law and judicial tests for retroactive application would typically be evaluated. However, they went on to say, we need not reach an evaluation of retroactivity under the state test because analysis under the federal standard leads us to conclude that Betts applies retroactively under both federal and state constitutional law. Would you mind explaining how they came to that decision?
[30:03] Larry: I’ll do my best, but this is a little bit complicated for everyone, including me. A case that announces a new rule when it breaks new ground or imposes a new obligation on the state or federal government is what Betts did. Prior to Betts, Michigan courts rejected ex post facto challenges to SORA, reasoning that SORA registration requirements were a civil regulatory scheme rather than punishment. But you guys in Lansing couldn’t stop yourselves and kept piling on until you got into a pickle. Therefore, given the state of the law at the time defendant’s conviction became final, a reasonable Michigan jurist would not have felt compelled by existing precedent to grant defendant the relief. So Betts announced a new rule that applies retroactively.
[31:20] Andy: The court stated, having determined that Betts announced a new rule, we must examine whether the rule is procedural or substantive in nature. What is the significance of that? Well, procedural rules are not generally applicable, while substantive rules are.
[31:34] Larry: It’s kind of like a rule of thumb. It’s like that thing we’ve talked about in past episodes about substantive due process and procedural due process. Procedural due process is the process itself of what you’re entitled to when you go through the judicial turnstile. But substantive due process means if they can’t prosecute it, if it violates substantive due process, then they don’t have the authority to do that. The court stated that in this case, the court of appeals correctly determined that Betts announced a new rule of law, reasoning that previous courts would not have felt compelled to grant defendant the relief sought. However, the panel confusingly—now that’s very gracious—confusingly concluded that the new rule was neither substantive nor procedural. The panel reasoned that the Betts rule was not substantive because it did not forbid certain conduct or prohibit a certain category.
[32:45] Andy: The state Supreme Court disagreed. They stated, we conclude that the rule announced in Betts was substantive in nature. In holding that the 2011 SORA imposed an unconstitutional ex post facto punishment, Betts did not concern the matter or procedure through which individuals could be convicted under the 2011 SORA. Instead, the rule expressed in Betts prohibited a certain category of punishment for a class of defendants because of their status or offense. And that’s where it gets really significant.
[33:20] Larry: It’s confusing because the way I’m trying to interpret it is, can you imagine how many people got convicted? If they were as zealous in prosecuting people in Michigan as they were with this guy, can you imagine how many people have been convicted during that 2005-2011 period for things they shouldn’t have been convicted of because those laws were found to be unconstitutional? Well, they would have been serving time. Some of them would have been on some form of post-prison supervision. And a whole class of people was punished under an unconstitutional law. This ruling rectifies that. So did I get this right? Yes, I believe so. In sum, we hold that Betz applies retroactively under the federal standard because it announced a new substantive rule of law. While we acknowledge that the Michigan Constitution may at times provide broader effect than federal jurisprudence affords, our Constitution may not provide fewer protections than those guaranteed under the federal Constitution. Accordingly, we hold that Betz also applies retroactively under state law.
[34:39] Andy: This is amazing. Wow. And this could be the first time you’re not Mr. Doom and Gloom. Like, first time ever. Yeah. Isn’t that amazing? It took how
[34:49] Larry: long have we been doing this? Episode 378? How many years?
[34:54] Andy: Quite a while. I do want to ask you, because really, to me, this all happened because somebody was being evicted and didn’t leave the property he was moving into. He was 19 days late in moving out of that place. That created this whole cascading mess, because had he not been violated for that, he wouldn’t have ended up in a hotel room and gotten charged $400 and gotten another violation.
[35:21] Larry: Right? Well, I think the hotel room came afterwards, but he wouldn’t have gotten failure to register, which put him on probation. That’s when he busted up the hotel room.
[35:33] Andy: Afterwards, yeah. So we can blame all of this on the person being evicted, that wasn’t his fault. Well, having
[35:42] Larry: Been a landlord for 17 years, I can tell you that happens all the time. People are not out on the date they’re supposed to be out, and it’s only the greedy nuts that guarantee they don’t want to miss a day’s rent. So if you come to me and I only have one unit, and it’s going to be open theoretically on the 1st, I’m not going to promise it to you until the 10th.
[36:02] Larry: Of course. Because I need to do make-ready, and I need to consider that you might hold over because everybody wants to clean on your time. They want to use rent to pay for their housing. And then they’ll come to me after their period of rent has expired on the 1st and say, well, if you let me have it for a few more days, I’ll clean it up for you. And I say, well, I’d be happy to let you have it for a few more days. Do you want to pay another month’s rent? And they say, no. But that’s kind of normal.
[36:29] Larry: This whole thing, the state ends up having never had this come-to-Jesus discussion. No, no, no. They were so adamant about putting this guy in prison. It may have taken a few more years before someone else came along and litigated this issue of BATES and the retroactive application of the BATES rule. But they were determined, and they’re good at this because it’s the law enforcement mentality. They’re determined to just bulldoze and plow ahead. They never sit back and say, hmm, if we do this, this is a pretty weak case to begin with; only 19 days. He’s probably not going to think it’s funny. And if he doesn’t think it’s funny, then the question for us is: Is he capable of litigating up the appellate chain? If he is, we might should leave him alone. I mean, officers out there, you need to think that way from time to time. If you call me, I’ll help you think these things through.
[37:28] Andy: I got it. Oh, my God. This ties into the whole Miriam Aukerman and the AC. Do I feel you on this in Michigan? Is that correct?
[37:43] Larry: Indeed. I don’t think they’re involved in this particular case, but I’m not certain it didn’t show in the decision. The BATES decision was definitely their work. And the Michigan legislature is not going to learn anything. Apparently, they’re going to keep trying to impose things. If you’ve got plenty of money, just keep doing it. Miriam has already told them that if they do this, they’ll be back in court again. But they don’t care; it’s not their money.
[38:12] Andy: Yeah. I mean, Michigan being one of the larger states in the country, we’ve looked up state budgets before, county budgets before. They’ve got to be well into the billions, right?
[38:24] Larry: An $80 billion or $100 billion state budget. So this is just a rounding error for them. But it’s sad because I try to help people learn from their mistakes. You know, I’ve got a funny story about a phone call I got a few days ago here at the office. Do you want to hear that?
[38:40] Larry: Of course. We’ve got time. Well, so the phone rang. And at the office, the spam calls are getting as bad as they are on my private phone, which I largely have taken care of with my program. But it has worked. It took months, but it’s worked. But this person called. And he said that he was Roger with BMO Security, and BMO is a financial institution, for those who are not aware. It’s largely in the western part of the country. It used to be Bank of the West, and now it’s BMO. And we used to have several accounts with BMO, which is probably how he got the number. Because of our previous relationships, we were probably on a data breach somewhere, and he got the number. He said, I would like to speak to the person who… Who is the authorized signer on the accounts. I said, well, Roger, who is the authorized person you would like to speak to? He says, I’m not at liberty to divulge that for security reasons. But the authorized signer, because this is an urgent situation. Of course, my blood was already boiling, because I knew we haven’t had an account with BMO for five or six years. I said, Roger, you’re a fraud. You’re not very good at what you do. And he hung up on me when I was trying to help him. Shame on this person, Larry. Then I called back the number, and it rang like a regular cell phone, not to anything that sounded business-like. It rang to a regular cell phone, which may have been a spoofed number, but it rang to a cell phone. The voice had one of those auto responses that says, “the number you’ve reached is not available.” And I left a message. I said, Roger, please call me back. I want to help you improve your fraud skills. But he has not called back.
[40:42] Andy: Weird. I’m so surprised by this. Why wouldn’t he call back? So back in reality land. Big Mike read up on the case a little bit about Michigan. If you have time, can you ask Larry what influence one circuit decision can have in another circuit?
[41:05] Larry: Well, I’m assuming he’s talking about federal circuits when he says that, because we just talked about a circuit court in Michigan. But yeah, so probably talking about since the Michigan court was decided by the Sixth Circuit, Dills versus Snyder, the original decision was a federal decision. They’re not binding outside of the circuit, but you use those and argue they are very persuasive. You cite what a great job the analysis is and how thoroughly it was done and how reasonable it is. And you cite two of that as being persuasive authority, and oftentimes it’s very persuasive to other circuits and they will adopt that reasoning. It’s not a guarantee because that’s why we have circuit splits. But there is a good chance that a well-analyzed decision by one circuit could spread to other circuits, but it’s not binding.
[42:06] Andy: I hope I word this right. How wouldn’t that be at least similar to stare decisis, where we have a decision from the past and the Supreme Court might overturn it? So here, this court said something, and another circuit could choose to follow it or not. They could still say F.Y.P. and do what they want. Aren’t those reasonably similar?
[42:43] Larry: I guess you could say that. For example, the 11th Circuit, which covers Georgia, Florida, and Alabama, isn’t required to adopt the reasoning of the 6th Circuit in Dills versus Snyder. They can take very similar facts and decide differently, saying the restrictions are just an enhancement of a regulatory framework and not punitive.
[43:16] Andy: I get you. And, God, I just had something profound to say. It probably would have brought down the registry if I remembered it. Oh, well. Do you have anything else? We have plenty of time left. I don’t think I have anything else. This is basically a one-topic episode.
[43:36] Larry: Just about. And a little bit about probation and parole: you do not want to get crossways with your PO because they’re such a power mismatch. Without a doubt. They’re almost always going to win. Almost always. Therefore, you need to be compliant and have someone else bucking them, not you. Because if someone else is the one causing trouble, they’ll spend their time on that person instead of you.
[44:06] Andy: Yes. That was my philosophy. If they can go spend time with that dude over there, then they’re going to have less time with me. And if I’m always readily available when they say, “We’re coming by and checking on you,” I am here. Door’s open. Great. They come in and leave. What a concept. Who would have thought of anything so complicated? And they’re encouraging me to come off supervision early. You know, you should really try this because it would go well for you. Really? Okay. Well,
[44:40] Larry: but you started out on the right foot and never were confrontational with him. Never. Well, other than the podcast. He would have likely gone in since he went to trial and is still maintaining his innocence. If he told them he didn’t do it when he got his initial release, that wouldn’t go over well, even though he might not have done it. We don’t know that he did it. The evidence was sufficient for a jury to convict him, but we don’t know.
[45:09] Andy: That he actually did it. Absolutely. Well, hey, do you know what tonight is? It’s game three of the Stanley Cup finals. So that tells me you’re going to get out of here quick. The puck will drop in about 25 minutes. All righty then. I’ll see you in about a week if you invite me back. I will consider it. I’ll put you at the very bottom of the pile again and we’ll see what we come up with in another seven days. Larry, I hope you have a fantastic night. I’m going to do the closing stuff here. Head over to registrymatters.co for show notes and links everywhere you need to go. You can email us at registrymatterscast at gmail.com or leave an old-fashioned voicemail at 747-227-4477. And please support us on Patreon; our listeners have been very generous over the years. That’s patreon.com/slash/registrymatters. We’re independent creators here, and every little bit helps. Even a buck a month is appreciated. If you want to support another way, head over to fypeducation.org/shop for shirts, caps, mouse pads, and more. Larry, stay out of trouble. Stay cool. Hydrate. All that, you know. Will do. Have a great weekend. Good night.
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