Transcript of RM107: Doe vs Abbot

Listen to RM107: Doe vs Abbot

Andy 0:00
registry matters is an independent production. The opinions and ideas here are that of the hosts and do not reflect the opinions of any other organization. If you have a problem with these thoughts fyp recording live from fyp secret location in the Great White north and fyp West transmitting across the internet. This is Episode 107 of registry matters. Happy Saturday, Larry, how are you? will do it great

Larry 0:22
Andy and it’s a

Andy 0:24
Christmas Eve Eve Eve. It’s Christmas Eve, Eve. Wait, it’s not Saturday night, isn’t

Larry 0:30
it? Sunday. So it’s it’s we’ve got a WSB Tuesday evening would be would be Monday. So it’s easy. Like I said today Sunday.

Andy 0:38
Okay, well, I said it was Saturday. I was confused. We’re, I’m all discombobulated again. So how are you this evening,

Larry 0:45
just looking forward to having this great episode of red shirt matters that I’m going to build my Christmas holidays.

Andy 0:52
Fantastic. We actually weren’t going to record we had we had planned on taking the day off the week off whatever and then you came up with a This, the late breaking news of the evening of this dough versus Abbott. So we we threw together it’ll put, you know, maybe it’ll run an hour, maybe it’s just a little bit over. But that’s, that’s the plan. So what’s up with this Adobe edit?

Larry 1:11
Well, we’re going to do a deeper dive in it. But this is a case out of the Fifth Circuit Court of Appeals the United States circuit court for the Fifth Circuit, which includes Texas and Louisiana, and then the south central corridor there. And the challenge was against a registry, and Texas that this attorney named Linda Linda Estes Hightower had filed a complaint in 2018. quite a lengthy complaint and there was a lot of criticism of man’s high tower, and I had spoken less critical of his high tower, but with subdue bl city. So now at the after the district court extinguisher case she filed an appeal of the district courts dismissal for failure to state a claim for which relief can be granted. And she last saw the Fifth Circuit has said that Texas registry has not evolved to the point where it’s punitive. So, so you guys at Texas, you’re going to have to wait till things get worse, or until you get a different set of judges on the courts of appeals of the Court of Appeals for the Fifth Circuit and this and the district court level in Texas.

Andy 2:16
Right. I understand. Is she the I recall? A I think she was on an arsenal in action. And and maybe not, but I remember hearing people complaining that there was an attorney in Texas that was like soliciting work. Is this the same woman that was doing that?

Larry 2:30
This is in fact, the attorney who had solicited people in Texas and in Florida. And as far as I know, she’s still has an active case in Florida. Hopefully it doesn’t meet the same same end result. But it’s a time we’ve never had her on our selection call but I thought about it, but I got a lot of pushback from Texans because they said that she was well, they’re unflattering comments were made about her. And I didn’t agree with those unflattering comments. First of all, they’re unprofessional to make and you shouldn’t shouldn’t do that. If you have a problem with it. In terms of their professionalism, there’s a process to to make those complaints. But But I didn’t see anything unethical about her soliciting clients. The rules have long since been changed about that. And I didn’t see anything unethical with her asking for payment for the services. She’s, as she pointed out, she’s got staff office overhead people expected to be paid. And she reminded me that she didn’t put these people in the registry.

Andy 3:24
Why? Why would any i mean is that is her doing that any different? And I’m not trying to make this direct comparison. But you see, you know, ambulance chaser kind of attorneys there. They’re not soliciting you directly, but they’re saying, Hey, have you been hurt in an accident? Is this any different than that? Well,

Larry 3:40
they actually do solicit you directly. The attorneys do get reports of accidents, they do DWI arrest histories. They’re checking the jail, police blotter and they actually do solicit people that have been in situations where they might need a lawyer and the rules of Professional Conduct permit that as long as you disclose that it’s a lawyer. advertisement. So I don’t I don’t see anything particularly unethical. And it wouldn’t matter if I did because the people who make the rules I’ve said that advertising for clients is not unethical. So you may disagree with it, but they’re allowed to do it. They’re allowed to do it like every other business.

Andy 4:18
Yeah, I’m trying to see why it would be different for me to walk in there and hand up my card and say I do computer work. Are you interested in having business? You know, setting up a relationship? How would that be different than an attorney doing something vaguely similar?

Larry 4:31
Well, well, it goes back to people who have the power tend to want to retain the power. years ago, lawyers who had become very well known and established firms, larger firms, they wanted to have barriers to entry and you’ll find that if you if you’re trying to get a taxi medallion, which are becoming less valuable than Uber, but if you’re trying to get a tow truck operators license, all these people who have have their their their interest to protect whether they’ve been counselors where they made dental assistants or dental hygiene. magically you need a license. magically you need all this. And magically you have these rules that these governing boards impose have one that lasted for generations was that lawyers it will somehow insanely of the profession to advertise and they weren’t allowed to do. If you go back 30 years, most of the advertisements would be a telephone Yellow Pages. That’s that’d be where you’d find an attorney. Well, guess who can afford to be at the Yellow Pages. It wouldn’t be your up and coming lawyer who just got out of law school with thousands of dollars of debt. And they’re at a little, tiny shanty somewhere trying to trying to make a goal of it. It would be the lawyers who had multiple firm lawyers at their firm, and they would have the resources to shell out the kind of money that the telephone company as as the telephone company was not monopoly until the early 80s that they would have required for those for those full page half page and quarter page ads.

Andy 5:59
So There’s nothing at all about a

Larry 6:02
an attorney. So listening that way. I think of course, you could go to the point where it would be. I mean, if you showed up at a funeral parlor,

you could you take anything to an extreme, but people who have been injured and people who have suffered, suffered whatever the situation is, often they’re not a declarative thinker, so they are in need of help. And I guess it would be like when Colonel Tom Parker showed up after after Elvis died, that was his longtime manager. When he handed the agreement took to Vernon, Elvis’s father and said, I’d like to continue to manage Elvis’s business. And Elvis had given him 50% of everything. And Vernon found out later that that was not an ethical arrangement that no one gets 50%. So he moved to set aside the agreement because it was done in the time of duress. There is a point to where you can take something too far. Yeah,

Unknown Speaker 6:58
among Charles and I’m going to Kind of paraphrase it. It. Could you make the argument that a person that is soliciting the business, not necessarily but possibly has a better level of experience in the field since they’re soliciting for it, then you going on knocking on various attorneys door going? Do you have experience in this? They’d be like, Yeah, sure. I got all kinds of experience. And they don’t know a frickin thing about dealing with the registry at all. I think that’s a good comparison, because that’s exactly what Charles is up against. As he does his shopping. He’s going to encounter a lot of attorneys who have filed for a downgrade of the person’s level, but he’s probably not going to find he’s going to spend a lot of time trying to find an attorney who’s filed a challenge, say that the person’s offense was not close enough to New York offense that it didn’t require registration, there’s going to be far fewer of those attorneys, but someone who’s going to be hungry and has a mortgage payment to make and was a payroll to make they’re going to say, Well, sure, I can do that.

Larry 7:54
I’ve taken many of these up, issues up on levels registration, and this is just that all shooter that is what they’re going to tell it. And he’s got to believe it because the Lord has the dice soup. It’s kind of like the Baptist minister, the Lord has that nice suit the nice office, and it sounds really good.

Andy 8:10
And you want to believe with the person? Of course. All right, well, then we will cover that before we close out the show.

Larry 8:15
Let me back off on the Baptist ministers Council, we’re gonna get hate mail for them. But if you’ve ever if you’ve ever been to a Southern Baptist Church, you will have to agree that there’s something about the way those preachers dress they they really, they really go all out.

Andy 8:30
Is that before or after they handle the snakes?

Unknown Speaker 8:33
Just kidding. I’m

Larry 8:35
talking about those primitive baptized by SPC church. As I grew up in the south, you go into those churches and if you watch the movie, oh God, you’ll see how that they portrayed him exactly. Like I remember Baptist preachers dressed up with a jewelry and everything.

Andy 8:53
And then you have an update that there was something with Galen, men, Pokemon, whatever that is. appellate review for his probation vacation. I did.

Larry 9:03
And I think we can spend some time on it and it would be helpful for people. It’s not gonna it’s not going to be something where it’s going to apply the way that people had expected. GALEN had two issues he had, he had his probation revoked for, for communicating with a minor who was over 16. And the communication was not criminal, but it was a violation of his terms of sex offender supervision. And he he ended up having his probation revoked, and, and they imposed a year and then they they they remitted to probation after the year with it converted to lifetime with some additional requirements, including though internet access. And and and so when the year almost expired, the state of Virginia filed a petition to commit him civilly, which is where an arsenal has great interest because it’s the second civil command A petition, and he did not commit another sex offense. But this was merely all the criminal action on the side of his revocation was their grounds to revoke his supervision and to put him on lifetime supervision, which was not what he originally had. And, and and could they prohibit him from being on the internet? And the answer was yes to all of his three appellate issues that they could do all three of those things. And I

Andy 10:27
thought we I thought we resolved it with Paki can that they can’t make a blanket internet band,

Larry 10:32
but they can’t make a blanket internet band for a whole group of people. But one thing I’ve tried to stress on this podcast is that what can be done to an individual with unique, uniquely tailored circumstances that’s targeted for that particular offender. Not just because you feel good or you hate the offender or the class offenders, you can do most anything. They put this restriction it was narrowly tailored and targeted to him. He had problems with not using the internet properly, it got him in trouble the first time. And then while under supervision, which sex offender supervision is pretty stringent in most instances by being in the Peach State, it sounds like mpca so it’s a it’s a, it’s a panacea of fun. from, from what I hear people travel all over the country and they do what they want to do and but but in this in this case, he was under fairly stringent supervision, although they were giving him some liberal travel. And he saw he traveled to Minnesota to a funeral and and and then he took up a liking to a 16 year old boy and they started texting and tried to tell him how to to avoid the the collection of the of the big able to provide he was telling them ways to evade detection. st Snapchat and some of the other platforms would not be trackable. And the parents found out about it and they just didn’t think it was such a great idea for Person 40 years old to be texting their 16 year old telling them how to avoid parental oversight. So, so they, they contacted the authorities in Virginia. And and they they they revoked him for this. So this is a this is a narrowly tailored ban. And at the time they revoked his probation packing ham had not been released. So the the appellate court this is from this is from the Court of Appeals in Virginia. I think there’s one more level that they can go to, if they can, if they are determined they could file a cert petition with the state’s highest court, but the appellate court said that the court the trial judge had every reason to do what he did because of the unique circumstances of Galen, you know, that that all other attempts to oversee have had been unsuccessful. And then what I really think is, is as I hate to use the word funny because you chewed me out about doing that, but they brought it down I brought in Dr. Fred Berlin you know you’ve all heard of Fred Berlin right? He’s the guy he’s the he’s the guru of sex offender treatment not you know he’s

Andy 13:10
okay yes all Kabuki Dr.

Larry 13:12
Weil, Adele, he’s supposedly well respected and well and arsal is just I think he might even be on the agenda for the for the conference. I think he’s going to be a speaker but he you know, he’s treated some high profile cases and he’s got a national recognition. Well, Dr. Berlin they decided to call him as their expert. Well, Berlin admitted this is this is this is always funny when your witness screws you, Berlin said that he did believe that Galen was grooming, but he said it certainly could be that that was it could be perceived that way. He says Dr. Berlin testified I’ve got this highlight on page four. grooming is a three step process. Step one referred to establish more of a relationship of trust with a buyer step to referred to algae, gauging the miners interest in sexual relationship and step three referred to additional efforts by the groomer to turn his or her relationship into minor to a sexualized relationship. Dr. Dr. Brilliant ultimately testified that his expert opinion appellant whose Galen had no intention of turning a relationship sexual, but he said that it can certainly be perceived that way. Well, that’s kind of bad. Would you say? It would be reasonable to he said appellants conduct could have been interpreted to have constituted step one? That’s just not real good for your expert that you probably paid good money to come in and say that Yeah,

Andy 14:40
well, alright. So they can make some kind of blanket internet or other various tailoring, depending on what you are known to be. Have a proclivity towards.

Larry 14:51
Well, that’s what this level of appellate review has yielded. But they also said that he could go back and view of packing ham and he can file for reconsideration of That extreme restriction and ask the court to consider packing him. And they might relax that. But right now he’s in civil commitment, which is where we have a great interest because he shouldn’t have had to go through a second civil commitment process big that he’d already beat the first one years ago. And they didn’t have a new sex offense they had behavior that it best could be categorized as grooming, which as Galen pointed out, in his case, on appeal here, that it was not against the law, to have conversations with a 16 year old. There’s nothing unlawful about that it was a violation of probation. So therefore, the Commonwealth very committed, committed him to an institution based on something he might do, not something he’s done, but something he might do,

Andy 15:53
but but I mean, not based on any sort of, it’s similar to the Cosby thing where they brought in the ladies to give a sort of an Mo, here’s the mo of something that paints a picture of what has been done in the past. Possibly you could use that to project forward of what could be done in the future.

Larry 16:11
That’s what they did. But we we we don’t have the United States, we don’t detain people for what they might do we depict detain them for what they have done. And talking to a minor doesn’t rise to the level if he actually worked to have a sexual liaison in Minnesota would have been legal because the age of consent was 16 is 16. But in the Commonwealth of Virginia would have been so he would have been sophisticated enough to know which state to have the relationship in now, I’m not advising anybody to break the law. But certainly, you need to be aware of what the age of consent is, and whatever, whatever situation you find yourself because it varies from state to state. So you could find something very hot at one state that you would be completely lawful in doing it and if you go just across the border to the next day, the same scenario rise and it would put you in prison for a long period of time. I understand

Andy 16:59
Let’s move over to courthouse news. And Larry, this is just like, you know, funny. Funny. Haha not funny really. Ex cop gets 10 years for forcing teens to run naked. He pulled these 218 year olds so young women over for running a stop sign and after he found a small amount of alcohol and the wacky weed stuff, he laid down an ultimatum Take your clothes off and run around or go to jail.

Unknown Speaker 17:29
I don’t see a problem with

Larry 17:30
this. Well, I actually do. The I’m my guest hearts and I’m saying it now there’s a lot of people out there that are salivating they’re listening. They’re saying well, the compound I got is what they call it come up with a comma. Yes, yeah, but but that’s hypocrisy at its finest. If we believe in Fair Sentencing and for the for the students to fit the crime for the punishment fit the crime. I think 10 years is just a tad bit on the excessive side. Now Florida’s known for being harsh, but it’s one of those southern states where they believe that that that harsh sentencing is the answer to all problems, but 10 years. For me, there’s no i didn’t catch anywhere in there where there was actually any sexual activity that took place. This was at both very embarrassing to them.

Andy 18:18
He also asked one of the teenagers for a handjob Forgive me for being some level of graphic.

Larry 18:25
Well, again, that would still not rise to the level of the sexual assault on either of the teenagers don’t think 10 years in prison for for requesting pay, whatever you call it, I don’t think this is a family program. You know,

Andy 18:41
of course, of course, it was how about how about like the idea that the jury came back with a guilty verdict on counts of extortion? I think you could say extortion is almost like a quid pro quo, or, excuse me an unlawful compensation.

Unknown Speaker 18:53
Well, clearly he broke the law.

Andy 18:55
Yeah, he clearly broke the law. He saw a 10 year sentence and rule That the former officer can be released from custody on a ,000 bond pending appeal.

Larry 19:04
And that’s a that’s a perk that very few people get these days is that appellate appeal bond, but

Andy 19:09
Oh, so he gets to avoid prison while he’s doing the appeal.

Larry 19:13
Well, and I don’t know how often that’s granted in Florida is is as as times have gotten tougher with with grim criminal procedure, appellate bonds have gotten more and more scarce, because people after they’ve been convicted, the argument is they’re there. They’re evading punishment. So you’ve you’ve you really have narrow, you have hoops to jump through to get an appeal bond and they usually they set a pretty high when they you should have you have to have some some substantial significant issue to appeal. Just because you don’t like the vertic best on enough. That’s not enough in many circumstances for you to be granted an appeal bond. So you’ve got it. You got to convince to trial judge that you’ve got some significant issues on appeal. And so he’s lucky in that regard, but again, 10 years Assuming a Florida you serve the overwhelming majority, I think you do. I don’t think I don’t think they I don’t think they have even parole in Florida. I think you start your sentence less whatever little good time they give you. But that’s all that’s a lot of time for this behavior. I would say, like I said about the teacher in Connecticut, that that that had the romantic relationship with the student. Clearly this guy should not be on the police department. This this power went to his head that he had this type of power. So clearly, he shouldn’t be a police officer ever again. So his certification to be a cop should be revoked. He should be punished. in some fashion. Punishment doesn’t always have to be behind the prison walls. How can we claim that we’re for reform and reducing our prison industrial complex? If we think the answer to everything is to send a person to prison? I’m suspecting they had no criminal behavior ever before. Are you willing to bid on the police force to start with so why is it that we demand such harsh treatment for a person? Yes, he broke the trust of the people. And yes, they’re having has to be some kind of accountability but I don’t think the 10 years is the right sentence for him.

Andy 21:05
So two final things. Charles in chat says that the British slang would be a hand shandi so now you’re educated on British slang. And also his wife is not happy. up what a hand shandi I don’t know. It’s I don’t know some British slang stuff. Charles is crazy.

Larry 21:22
So, and Shanti All right.

Andy 21:25
Yeah, there you go. Over at j s online, the Milwaukee Journal Sentinel, Attorney suta. Black vote on marcius law that would expand crime victims rights. Here we go again with martial law. And I know you’re going to say that this will pass with flying colors without any sort of resistance. It will and Marcy’s law mark. Why Why do people so martial law is something that gives the victim some sort of like I mean skin in the game, they get to attend hearings, they get to attend, they get to like have input into whether you get released on parole, probation. What You have? And how do the How do the victims and the victims advocates gain any sort of standing in this process?

Larry 22:08
Well, you will say that’s where you were, where you are not may not have the same belief. I believe a victim is nothing more than a witness. I don’t know that I disagree with you. The crime is against the people. And

Andy 22:20
yeah, and we says the state versus the the person, you know, says doe versus the state of Oklahoma.

Larry 22:26
Right? Well, well, that’s what I tell people and they get so they roll their eyes and they start hissing and make it okay. But as an organized society, we have come together. And we have collectively decided what our rules are for behavior. So that means the people have decided that certain behaviors not acceptable. And the people have put together a process but that’s wholesales unaccountable that non accountable, accountable for violating those standards of behavior. And it’s the orderly process that prevents vigilantism. The fact that a person Some who has been victimized is a witness. When they come forward and participate in the people’s process, there’s an expectation that the people’s process take into account their needs. But that doesn’t make them a player in the process. They’re merely a witness, according to what what I believe that the more the more you involve them in the decision making, the more you put you inject bias into a system that’s supposed to be free of that prejudice. Supposedly, the 12 jurors are totally independent. The judge is totally independent. And they’re not supposed to be if you ask the person who’s been victimized when you come home at your places completely ransacked, and your whole lifetime of possessions had been stomped on and destroyed. You’re very emotional. And some of those things could not be replaced. Even though there is just property crime. You’re not going to be particularly rational. If you find that person you’re not going to sit down and say now let’s Can you tell me a little bit about what caused you to do this? The average person is not going to react that way. So I don’t believe that The victims should have the level of say soul that they have. They are witnesses in a process that was designed by the people to keep fairness and keep and keep your rationality at bay. You can’t be irrational. You can’t be rational you can absolutely can be irrational if you’ve been a victim of a crime, and most people including me would be I was, I got attacked physically one time, and I was very rational about what should happen to the person, because you just can’t think about rationally why a person would do that.

Andy 24:32
So what you’re describing is something to do with like you have constitutionally protected rights of being the accused person. And it does say in the article that this amendment would interfere with the constitutional rights of the accused, but supporters say it levels the playing field but it really does just the opposite. It stacks the deck against the accused, I think that it gives much more power to already the pretty powerful entity of the district attorney Prosecutors

Larry 25:01
well when you start when you start injecting constitutional rights for victims, you have the potential for real problems. But this is go to pass the Wisconsin voters or go to any state voters would because it sounds good and if you if you if you if you if you fall into the belief that the system is so bad that everybody gets away with what practically everything this just sounds simple and easy this is to level the playing field so it would be surprised if it didn’t pass by 70 plus percent of the vote by beef at 80.

Andy 25:31
And I assume this train is already rolling. The only thing that we could do collectively for the people in Wisconsin would be to call your local dude or or chitlin say

Larry 25:42
too late late start it’s already gone to the people this is this is a referendum being voted on by the people.

Andy 25:48
Okay, and that’s so that’s why they’re they’re describing it as the like the people aren’t being educated well enough on it. I’m trying to see where it says okay, um,

Larry 25:57
yes, it’s already gone through the go to the People, I think it has to go through two to two legislative sessions. It’s done that. So now it’s going out to the people and the people are going to ratify it overwhelmingly. It’ll be 70 80%.

Andy 26:08
Yeah. Just because like it’s it. The lawsuit argues about the ballot question does not adequately summarize the effects of the measure. And so yeah, the state constitution requires each amendment. So this is a constitutional amendment even.

Larry 26:23
Yes. That’s what makes it so dangerous.

Andy 26:26
Yeah. But then doesn’t that set something up to be thrown at the supreme court also? Well, it

Larry 26:32
well, it would only be if you could come up with some constitutional violation. It’s not against law, to change your constitution. That’s why we have the amendment process. So I know

Andy 26:40
I get that part of it. Yeah. I’m just wondering, does it then challenge anything at the Federal Constitution that would bring up that level? Well, to get up to SCOTUS,

Larry 26:49
well, will possibly, if it if extinguish, cost us constitutional rights, if this amendment does that, yes. But it’ll take years to get there and a whole lot of people will suffer.

Andy 26:58
Of course, of course. So, so you believe that the current makeup of the SCOTUS would be more inclined to weigh against a Marcy’s law kind of provision.

Larry 27:09
You actually think that this Supreme Court is concerned about the rights of the accused? Really, and nobody I

Andy 27:15
don’t put based on at least like a Gorsuch kind of ideology. Man. There’s nothing in the in the constitution that says that victims have any rights. So this would extend beyond that, potentially screwing up an accused person, not that they’re weighing in favor of the accused, but they’re like, Hey, you don’t have any rights. There was nothing frame 200 years ago that said they were the victims of

Larry 27:34
rape, but that’s also the analysis that would take place the analysis would take place would be what does his style add rights? You could create them rights all day long, and you could give people things that are not in the Constitution. The question is, does the constitution prohibit this? And I think absolutely the constitution may not prohibit this. I think I depending on what i’m talking out without knowing what exactly what what, what, what gifts are being given to the victim. Somewhat rights of the accuser being extinguished, but unless we extinguish it rights of the accused, there’s nothing the supreme court can do about it. The people of Wisconsin have the right to change the process by how they how hell they administer justice. Yeah, it’s not it’s not it’s not Gorsuch, his business. And Gorsuch is not going to care much about what happens to the accused. I mean, if you’d like this crowd cares about the rights of the accused, that you would look at over the last 15 years of how they’ve been extinguishing the rights of the accused.

Andy 28:27
Yeah, I just yeah, I’m not looking at it from the rights of the accused. I’m looking at it of the accuser, the victim having more rights get being given more rights than what they were there. That’s the only angle that I was looking at it from.

Larry 28:39
Yeah, but but you did you forgotten some of the clips would play. Scalia had said if you want to do something, go pass a law. And that’s what the people are doing. They’re, they’re creating a process. And the less this process processes prohibited by by by sub constitution, they have every right to change their process. I just don’t agree with it. I am solidly for it. The defense in our adversarial system, I do not spend any time trying to help the, the the victims, I think they’re well represented by the other apparatuses that take care of them. And I’m in the business solely of trying to prevent as many people as I can from being harmed by a bureaucracy that has many times, I can’t even begin to tell you the rithmetic formula of how many times in excess of your resources that system has. So it’s a David versus Goliath thing, and, and every time we make it easier for convictions, we’re going to have more convictions. So and every time we make it more difficult for a person who’s been convicted to have any type of remediation, when when when you have to have everything. I mean, we’ve got states now for petitions for removal from the registry, which is supposed to be a civil regulatory scheme, or they have to notify the victims really, really they have to notify the victims Okay, so they’re already paid their debt to society. So you should completely out of the equation right now. But they have to notify the victim to see what they think about the big removed from the registry.

Andy 30:06
Right? I mean from that angle, then this is no different than a state making capital punishment, legal or illegal and the same as okay. So it doesn’t violate a common core principles such as a second amendment, the free to do it as they want to

Larry 30:25
did that’s correct it that the constitution doesn’t require you to calculate punish people. But according to the conservatives, it’s not against the Constitution, if you take that view that they took that cruel, unusual punishment would be what it meant at the time the framers wrote those words, none of this mumbo jumbo about evolving standards of decency, and about how society evolves and thinks about things that are different light after it gains more knowledge and more experience about how the death penalty has been unfairly administered and how it has has has, I mean, it’s really been quite a travesty of how the death penalty has been administered across this country. But they take the view that Well, that’s a mandate you don’t capital punishment if you’re opposed to it go pass the law like that. But more than once, I think on this podcast because people think that somehow and other that that Scalia is going to save them from this stuff. Of course it’s not because he’s deceased. But people have that mindset who believes that the that this you should interpret the constitution exactly about what the words would have been at that time. You wouldn’t like most of what you get in the way of interpretation. I hate to tell you that.

Andy 31:30
Yeah, I still don’t really see how that actually can be can be the mindset to be honest with you. I just don’t see how that actually works.

Larry 31:37
Well, it works occasionally. But it works occasionally. I like to use things at work occasionally, but but it’s kind of like the the the textualism which is also another core belief of Scalia textualism works occasionally. And but it does, I’m all for it.

Andy 31:52
And the attorney that we had the guest on Andrew Torres, I’ve heard him describe the whole idea, but there’s there’s case law case after case law, the the standard constantly moves the needle that we are always revisiting cases new things are brought up. And that becomes the new standard. It just by its design, it evolves.

Larry 32:11
Not according to Scalia does not.

Andy 32:14
But you have all of the case law that says Like, I forget what he says it’s like, you can tell me your you can tell me that you’re 17 feet taller, but I can just look at you and tell you that you are not. But you can believe it all you want, you could believe that it doesn’t evolve, but you could just watch the body of case law. And it does move, there is a changing of perception. And each of the states have a different perception of things. We have 50 You know, there there are variations across the states. Well, my point is if you fill the court with Scalia’s that’s

Larry 32:42
what you would get would be that mentality that he displayed. And he he adhered to that almost. I mean, I think one thing Brock pointed out once or twice where I said it’d be nice if he was actually intellectually honest here, but he had here to that email into ideology most of the time, and that’s what God is. him and how he interpreted the law. And certainly wouldn’t you wouldn’t like that. I mean, we went through a whole series of appellate and state Supreme Court decisions, you know, from Nebraska to Maryland, to, you know, to the porn possession in Maryland, where they were there was no exception in the statute. And I pointed out that that was actually a textual interpretation. The lawmakers didn’t create an exception. So the Supreme Court said, well, we’re not going to create something by judicial fiato. I mean, that’s not our job.

Andy 33:26
So So if your girl that had the point of herself, I guess it was Yes, yes.

Larry 33:30
Right. Yes, yes. Yeah. But we’ve gone through a series of those and I was hoping to let people know if you think you’re a tactless, you just may not be what you think you are when you when you find out what the resulting decisions are. If you take merely a textualist view, without any without any reliance on what the intent of the law is, and that’s, that’s what you get. So if you don’t like it, go back change the law.

Andy 33:56
Moving over to the Boston Globe scores of seven ex offenders have state licenses, bump Bump bomb to be electricians manicures and more Larry, the official who found out got fired but parts of the weird part of the story so sort of like a whistleblower person got fired, but you have all kinds of registered sex offenders. They are doing these various trade jobs where they need licenses and the licensing administration’s they are not doing background checks, and they’re letting these 68 people have these state held licenses including electricians 2821 electricians I don’t know what eight including bras of Leominster. I don’t even know what that means. Oh, I guess it’s the individual was a level three. We shouldn’t have level three offenders being electricians I don’t believe

Larry 34:48
can’t have that.

Andy 34:50
Why other than some should we allow let’s see if we if if we were to believe the rating system to not be Kabuki stuff You have determined someone to be a high level threat? Would you want them to be unsupervised and enter into potentially a person that could be violated by this person entering the house? Would you want to just let them go willy nilly and run around the city, unsupervised?

Larry 35:20
Well, again, would probably go back to have they pay their debt to society in its totality, the registered member is a civil regulatory scheme. So while a person’s being punished, so if they’re serving any portion of their sentence being in the community, then I would say that the community has the prerogative to intrude into their life a little bit. If these people have paid their debts as a society, and they’re barely having to register in the civil regulatory scheme. Absolutely. They should be able to hold any license and do any job. If they meet the criteria for that profession. Why wouldn’t they be able to they’ve supposedly, at the conclusion of your punishment, supposedly you’re rehabilitated

Andy 36:00
It says it’s an enormous public safety risk, said one division employee who works with several licensing boards and asked not to be named. It’s contrary to our reason for being to protect the public.

Larry 36:11
That’s nice. I appreciate you. But but that’s not America.

Andy 36:15
But is it? Is it even actually an enormous public safety risk? I don’t know that we have any evidence to support that that’s even a true statement?

Larry 36:22
Well, I don’t, I don’t it’s one of those things where people say if it saves one, it tomatoes are relevant. It saves one if it says 40 fours or thousand. It doesn’t matter because the person has done and paid their debt to society. We don’t do preventative detention. We don’t do guesswork here. This country, we shouldn’t do guesswork, they paid their debt, they should be able to drive a taxi, they should be able to make plumbing service calls, they should be able to be an accountant. They should be able to do those things that they do. Now. If you have an accounting board, for example, you may be permanently barred from the profession because I make pull your license like an attorney can be disbarred. And although although you You you’ve paid your debt to society, the attorney may be permanently disbarred because because of the graciousness of the violation, but in terms of, of just a person having a license, that being a level three sex offender, if they pay their debt, and I, I focus on that so much, because that’s where the courts are coming down of the dividing line, you should see that packing ham, you see that over and over again, these restrictions are particularly problematic for people who have paid their debt to society.

Andy 37:28
And I would be willing to accept if someone has some sort of money kind of conviction that you wouldn’t then necessarily want them to be an accountant. I can I can see a parallel there. And and maybe there’s not like a permanent bar on it. But then when you go to try and get that job, you don’t want Bernie Madoff, managing your finances, that would be a bad idea.

Larry 37:49
Probably would be. But again, that’s not what we’re talking about. Here. We’re talking about people who are doing something that has nothing, no relationship, right. Tony if you if you if you If you’re baking plumbing service calls, unless you pretended you were a plumber when you committed your sex offense, and knocked at the door with a uniform and snatched a child, there’s no there’s no correlation.

Andy 38:11
Hmm. And yeah, that’s all I got, man. I don’t I can’t even I can’t even push back on this one anymore. I’m just if you’re if you’re done, you’re done. And unless that employer wants to do it, aren’t we always talking about that you don’t want the big bad government determining who can and who can’t do a particular thing. I thought that’s what this whole country was

Larry 38:33
all about. I thought that was precisely what we were all about. I thought that we were the land of the free I hear the have heard that all my life. I hear that the land of the free. I thought if a person wanted to have a 300 unit apartment complex, and they wanted to rent to 20 people in the registry, I didn’t think big, bad government in the land of freedom but would interfere with that relationship. But apparently they do think that is definitely some thought that we claimed you could be all you could be in this country. I thought we profess that So if you could go out and get yourself on a plumbing truck and equipment and make service calls and make a living would that be what we would want?

Andy 39:08
Maybe by the way do you can be is just from the army that’s not that’s not countrywide a mantra.

Larry 39:14
Well, I haven’t heard that in years but that’s what we we say in this country you can grow up to be president you could be anything. This is the land where you can There’s your your your opportunities, just limitless really course but it doesn’t seem like it’s so limitless if you read this kind of stuff. No, definitely.

Andy 39:30
Alright, so let’s move over to law. com The legal Intelligencer, which I can’t even believe is a word. three states extend statute of limitations on sexual assault abuse harrassment I think that’s the British way to pronounce it. harrassment harrassment claims three populous and trend and trendsetting states Jersey, New York and California recently enacted new laws that provide a vast window of opportunity for complaints to bring otherwise time Bart claims of sexual assault. God that’s a long since abuse and harrassment So there you go more. These are definitely blue states are leading the charge of reducing the or extending the statute of limitations to probably something close to forever.

Larry 40:10
I can’t read the rest of the article. I don’t I don’t have the full article. I did read it earlier. But see, this is a trend. It’s not going to shake out red or blue. The blue states are going to be just as bad because it’s where the people are right now. And, and you, you have to recognize that when the people are clamoring for something to be done because of these high profile cases, the lawmakers are under enormous pressure. It’s very political. So I was suicidal to push back on this stuff. If you’re in the assembly, because you you hate women, you hate victims. You’re insensitive, you’re in denial. I mean, they go on and on and then they vilify you I saw this is one of those things where, where you’re going to see this cascading effect continue until we have coast to coast eradication of the statute limitations are being so worthless. that that that advanced will be eradicated. But that’s where that’s where we’re headed.

Andy 41:03
Is there anybody besides the Larry’s of the world that are standing up against the statute of limitations increases? Oh, yes.

Larry 41:09
Yes. That you have. You have some ACLU kind of places, places like that. And even they they’re not uniform because some ACLU is a so poor, they don’t have they don’t. They don’t spend their precious resources being at the capital ours does. And they push back here, and the Criminal Defense Lawyers Association here, but that’s not even uniform. You’ve got a very affluent state like Maryland and their Criminal Defense Lawyers Association. last check doesn’t lift a finger. They don’t even have a lobbyist that were 40 nights and per capita, we have a lobbyist. And they don’t, because one lawyer told me American he’s actually kind of better for us if they if they make things tougher, because that makes our job more valuable.

Andy 41:47
Right. So who else? I mean, who could we even try and lean on donate money to whatever to try and help push back?

Larry 41:55
But those are those are the ones that come to mind first would be like the defense Lord says The ACLU that the organizations that are tangentially related like a mandatory minimum, right? Those those people that because when you when you do I think I wanted this article, it said that one state, they raised the age up to 55 that a person could bring the charges. I think New York if I recall, yep. 55 Oh,

Andy 42:21
yeah. So I don’t want to ever discount that someone has something traumatic and terrible happened to them when they’re 10. So you have 45 years to bring that to court, where the people that could be evidence could be dead, the building where the evidence could be is certainly long been cleaned and gone over possibly demolished. I don’t see how I’m totally not trying to take away that the person had something happened, but how was the person that’s being accused have to have How are they supposed to have any level of proper defense?

Larry 42:50
Well, but we don’t care about that anymore. That’s the whole point. That’s not relevant to the to this discussion. It’s all about the person who makes the allegation. We have forgotten that. We were trusted. We were given a sacred trust and the creation of the system to protect those who are accused of what was it about a better than 100 Gold free guilty, that one innocent, who said that? I always

Unknown Speaker 43:14

Larry 43:14
We we were entrusted with protecting people from being incarcerated by the power of the government. And we’re failing and that trust because now it’s more popular to be able to say,

Unknown Speaker 43:30
I hear you.

Larry 43:33
I know, this must have been traumatic. But you happen to 50 years ago, you would have been the governor had this not happened. And we’ve got to do something to make you hope. And that’s, that’s where we are.

Andy 43:42
It’s from William Blackstone. It says it’s better that 10 guilty persons escaped than that one innocent suffer. But that was published in the 1760s. So that was a you want to talk about originalism?

Larry 43:54
Yeah, that that, that that would definitely be original, but but I don’t think we take that sacred Trust, very seriously more

Andy 44:03
inclined to agree with you. Alright, then finally, before we deep dive from GBH, which is, I believe in Boston, demonizing defense lawyers threatens the quality of American justice. I had no time to read this. You sent this to me like an hour and a half ago. I’ve no idea what’s going on here. Tell us what’s all

Larry 44:21
this Don’t be exaggerating. It was more worse than that. So, well, what, what people what people are missing in our adversarial system. And that’s what this attempts to deal with is when you demonize an institution, and we get a little bit that out of the White House quite a bit, actually, when you demonize the profession of criminal defense lawyers, simply because they do a job for a person who has had the power of the state or the federal government aimed at them, that you’re not condoning what they are accused of doing. You’re doing what an hour A serial system does, which is you’re holding the accuser to the burden of proof of beyond a reasonable doubt. And this this, this is pointing out that the more we demonize people, like Jeffrey Epstein deserve representation, Jeffrey Epstein, I’ve said it repeatedly, these police officers that acute get accused of some of these egregious crimes that we look at and say, Gee, I can’t believe you did that. They still are entitled to be represented because the state has a vast apparatus that they’re turning on them. And the individual has nothing but one person to speak for them. And to make sure that the state is following the rules of how this process is supposed to unfold, and will be demonized the people who do that job. It threatens their safety because there are people out there who want to hurt lawyers who represent me with their threatened or their livelihood. They’re threatened. What did we talk about, about an attorney that that they got? They got Somewhere in the ivory tower that they that they demonize so much that the he was ousted and lost his tenure. I think that was a few years ago. Quite a few episodes back. But, but the attorneys have a vital role to play and demonizing them just undermines the system of justice. If no one can represent these people that’s competent, then we have no system of justice because then simply because an accusation that would just railroad them off to jail,

Andy 46:27
definitely that you know, we’ve had a bunch of a bunch of movies out there in the public sector where you can go watch, I can’t remember. I want to say it’s called fear, perhaps but it has Richard Gere, I think. Anyway, he defended someone he was a very high profile attorney and he you know, I realized it’s a movie but anyway, so he defends someone who pro bono looks like just a kid with like a stutter. And after they get gets him off, he goes down and talks to him before he he gets released and he totally tell somebody was a scam but you know the the attorney had to deal with all the garbage and the crap of defending someone who was ultimately actually guilty but you know just you know firebombs at the house and being cussed out and tomatoes and all that stuff.

Larry 47:17
Well it was a Harvard professor that got demonized and he. Oh, yeah, yeah. Weinstein’s defense. That’s what I was trying to

Andy 47:24
say. Yes, that’s correct. I’m with you on that.

Larry 47:25
Yes. We thought we talked about on the podcast,

Andy 47:27
probably six months ago.

Larry 47:29
Yeah. Yeah, it was, it looks like it was back in May. So it’d be about six, seven months ago. But that’s what I was trying to think of. But but this is sad, because when this happens to you, when you have the state, turning its vast resource and Arsenal on you, then magically you’re going to feel hopeless, when when they’ll one will represent you because of the despicable nature of what you’ve been accused of doing. If that’s the standard, then we just have to make the the allegations ugly enough and sensationalized them without And then all the attorneys will run from you, and then you’ll be hopeless in a system. And then a judge would have to order someone to represent you because a good judge would not allow you to represent yourself. If you’re facing decades or life in prison. Because the stakes are too high. You need representation. You don’t understand this. And

Andy 48:16
just to close out this particular segment, this is a commentary piece from an author named Harvey silver gate and Harvey silver gate is a criminal defense and civil liberties trial appellate lawyer. So he is he’s already on that side of the house. But this is just a commentary. This isn’t something that they’re putting together. It’s like a factual like this just as point of view, but you know, agreeing with obviously, what the things that you’re saying there,

Larry 48:37
so Well, I’m glad that someone does because I sure get flack when I talk. They say you just don’t care about you. You just have no ethics. I said, Well, actually, I think I do have ethics. My ethics are that we don’t put people in a boxing ring that are not boxers, and that’s what we’re doing and when someone goes in a serious criminal trial You can do all right in our traffic court setting where the penalty is relatively minor. But when you’re looking at decades in prison with complicated charges, and all sorts of forensics evidence that you have no idea how to analyze, you have no idea how to get how to how to navigate through the system of what would be admissible, how to do a proper framing up of your defense, you’re hopelessly lost without an attorney, and you may be lost even with an attorney, but you’re certainly lost without one. Yeah. And you’re also not going to be able to do it with an unbiased point of view, you’re not gonna be able to look at it with, you know, just as as clear as possible. I mean, if you’re in it, we were just talking about the victims and being upset about them being a victim. Your opinion is certainly colored. As you know, by being in you can’t see the forest through the trees as the expression goes. So having someone on the outside the attorney looking at it, to some degree of impartial help would help out a lot. Absolutely agree with him. Just as a quick question, Charles throws when He says he’s a court appointed lawyer, a public defender and who pays them? Well, Charles, that’s a good question. And it varies from jurisdiction to jurisdiction. You have you have systems where like it my state, all public defender, if it’s a if it’s a crime against the state of New Mexico, and most charges are there are such things as county and municipal ordinances. But but but and what you’re entitled to, to an attorney larger depends on what you’re facing incarceration. And here, that that that’s all provided by the State of New Mexico, and some jurisdictions like in George’s county by county, so so if you were in a Floyd County like DeKalb, or Fulton, which are in metropolitan Atlanta, you would probably have a lot better pay scale for the public defender apparatus and those counties then you probably would end up having if you weren’t a much poorer County, like were president, former President Carter’s from that and Sumpter county for planes. And so it depends on it depends on the state and how they structure their public defender resources. But it’s got to be either state or local resources that pay for the pay for them.

Andy 51:04
But ultimately, the taxpayers are paying for it.

Larry 51:06
Well, that is true, except that the Federal Public Defender system, you have you have, we don’t pay the taxes that pays for our government. So so I really resent people say the taxpayers pay for it. Because we only pay about 70% to 80% of our bills in this country, we put the rest of the credit card. So if you want to be literally and brutally honest, the taxpayer pays for a portion of your defense if you’re charged with a federal crime, but they don’t pay for your defense because we don’t pay our bills in this country. We charge them.

Andy 51:40
I’m pulling I’m pulling the soapbox out from Okay, so step off that, please. So let’s go. Let’s go into detail about this dough versus Abbott decision. And I guess I can ask you a question right off the bat. It’s 180 plus paragraphs. There’s a crap ton of different classes of complaints this is highly complicated, at least from my simple lay person mindset. I Why is it so? Why is it so broad? Why is it so covering so many things?

Larry 52:10
Well, that is the the great question. And I’m glad that you asked it because they we hear this all the time. Well, Larry, I don’t understand. Why does it northville file a class action complaint? Well, the reason why is because they’re exceedingly complicated. And you have to get them certified by the court and their hoops to jump through. And courts do not like class actions because they devour a lot of resources. Because in this case, they were proposing seven, seven separate classes. This was a challenge against the registry in Texas. And those who have heard about this challenge the the attorney named Terry Estes Hightower was criticized back in 2018 when she filed this complaint because she had actually asked For money and signed up plaintiffs and charged fees, and she filed this very complicated proceeding the complaint and and the proceeding, overwhelmed the court. And I felt she was unjustly criticized at the time and I said it. I thought about having her on a conference call I never did, because the people in Texas were so critical of her. I said, Well, gee, I’m going to irritate a lot of our supporters, if we bring this person on site ended up not ever having her on. But I defended her. And I still defend her to to a point. The point is, when you bring a very complicated case, the courts are going to find it. It makes it difficult for all the parties, not just the court, but you if you have multiple defendants, they’re all going to have their own attorneys and you end up if you bring all these agencies into a complaint, and try to provide everything for everybody. You have is just a management nightmare. If you judge The fact that this case was canned, if you if you say that that makes her incompetent then dorsals attorney Paul duplin would be incompetent because he brought a similar challenge in North Carolina where that they they had a judge where they had brought an exceedingly complicated complaint, and he voluntarily dismissed it. He didn’t take it up on appeal to Paul’s credit, he was far too shrewd to let his case be flushed with all those claims. So they split off and they made they made smaller actions, and they’re moving forward on a divot, individual basis. But this this complicated complaint probably led to his demise, but we can get into the fifth circuit’s ruling a little bit, but it was an exceedingly complicated class action complaint. And it went nowhere. So when everybody says, Why don’t we find a class action? Take a look at this. This will tell you what tell you why.

Andy 54:50
What we’re, what is a class of complaint. I don’t I don’t even understand what that means to begin with.

Larry 54:57
Well, the class action is where were you Hear this woman on the news all the time, you’ll say the, the, the, the such and such a company settled the class action lawsuit because of the data breach and everybody who was a victim of that. They all had similar claims that they’ve been brought individually. And for the sake of judicial economy, it made better sense to certify that that group that had almost identical complaints as a class where she she didn’t want just one class. You know what this wasn’t like that the breast implant blew up and you had one manufacturer, and one defective product, she had seven classes she was trying to certify at, you would had seven sub classes. And that made it even more complicated, but a class action can be the proper way to go. If you have almost identical complaints. And the law firm has the capacity to manage the lawsuit and to communicate with the plaintiffs because in a class action, you’re representing everyone who’s similarly situated unless they opt out of the class, and they asked to be opted out. Otherwise, if you were to win the class action that everybody that was a member of that class within the zone, they would be entitled to whatever relief. And so when you get these notices in the mail that you have been, you’re a member of this class, you own this stock between this date this date, and the company agreed that they put billion into a settlement fund and all the investors who brought bought the stock during this period of time, they’re entitled to a prorated amount of the settlement put your claim, and now, well, those are those are far simpler. They do make a lot of money for lawyers, by the way, because the lawyers are hoping that that fewer claims come in because that makes it a bigger payoff for each individual. And they much rather stand out larger checks then sending out checks for . So so so they’re hoping that people don’t go through the through the efforts that again, the the claim for their prorated share of the settlement, but but it what we’re dealing with folks, the class I is really not the most viable way to go. But we hear it all the time, dollar class action, our class action. Well, okay, I guess

Andy 57:08
we should just file you should file a case in the Supreme Court that just shuts this whole thing down.

Larry 57:13
Yeah. But see you even that you can’t do because you can’t file a case in the Supreme Court. It’s not a court of original subject matter jurisdiction. You have to work your case through the lower courts. And you have to hope that you can convince the Supreme Court it would like to take up the issues that you have. So you don’t have any right of original subject matter jurisdiction to file something in the Supreme Court.

Andy 57:33
Yeah, I think there has been talked about something with the current administration that something could be fine. I think that’s one place that one thing that originates there’s there’s presidential kinds of things.

Larry 57:45
Yeah, there’s like disputes between the states. I think there was originally subject matter matter jurisdiction there. There are some limited things were there. The original subject matter jurisdiction starts there, but it’s very, very limited. You can’t file our our cause of action with Supreme Court.

Andy 58:00
And then just to just extend that you can’t file stuff there. And then where do you go? After the Supreme Court rules? Who’s the who’s who do you appeal to after SCOTUS,

Larry 58:08
there’s nowhere else to go. Alright, so you just accept it, you tuck your tail in and you go home and you wait decades for them to have a change of heart as the law evolves. And it says, as they decide that they may have gotten it wrong, or in view of a better understanding that that what what they thought was the case is no longer the case. And and, you know, so if you believe that that rigid interpretation that they would never go back and review anything, but but you you either change the law, or you are you wait until the makeup of the courts change it like Like, for example, the abortion that this issue keeps coming back since 1973. Because in Roe v. Wade, they said that there was a right to abortion. Absolutely. And the first trimester, there are people who vehemently disagree with that. And they will continue to test what laws they can pass how much restrictions they can put on abortion because They just don’t believe that they should happen. And those cases continually work their way up to the through the court system. And eventually we’ll get our test of Roe vs. Wade double it mixed up to bother your Supreme Court. And we’ll see if they still believe that you have an absolute right on the constitution to have an abortion. Justice Scalia said you absolutely did not. So if you had if you had five of his mindset, there would be no right to an abortion. It wouldn’t you would have to create it through through your state legislature. COSTA as far as he was concerned, there is no US Constitution, right.

Andy 59:29
And if you had nine RBG, then you would always have it too.

Larry 59:34
Well, if you had not above you, certainly if you had five, you’d be all right. But but but you know, it’s a dubious, right, I’ll have to say I mean, the way they created that I have the right to privacy, that’s that that’s stretching to come up with the right. But on the other hand, they have a rational they the way they carved out that they said if you could control your body, what could you control, as it is an interesting

Andy 59:57
point of view. I want to thank

Larry 59:59
you So let’s look up further in this. this. The opinion is not that law and put it up, put it in here with highlights. The complaint is also available for those who want to read it. But it’s not the final complaint. I understand she filed an amended complaint. And I was too cheap and lazy to go pull the amended complaint, but the original complaint is the one that I have here. But but the the Fifth Circuit decision is actually quite short. It’s It’s It’s, it’s 10 pages. And there’s there’s highlights all throughout it. And, and the big thing that people need to take from this is that just because the Sixth Circuit Court of Appeals found that Michigan’s registry had evolved through the 2006 and 2011 amendments, that it inflicted punishment, that somehow another that makes all state registries vulnerable. It does not Vermont’s registry isn’t the least bit vulnerable in my opinion, because you may have Man you can live where you want to you can work where you want to. Your address is not on the internet. Probably got thousands of people heading to Vermont, Vermont right now after saying, but you, you you couldn’t argue that that imposes city disability restraint if you can live where you want to, you can work where you want to. You don’t have to go see the police email the format to them. They don’t disclose your address. They do say they do put your certain number of offenders on the website, but they don’t put your home address they put your city and your state.

Andy 1:01:34
They get you sort of like a general geography, not the actual

Larry 1:01:37
correct. So so you know, if you live in a small town, if there’s 114 people in your town, they’re probably gonna know who you are, even though the address is not there. But if you live in Burlington, they probably won’t know where you are the living Beddington they probably don’t know where you are. So so if you live in Montpelier, which is a little bit smaller, that might know where you are, because that’s actually the smallest Cavalia we have. But But as you go through this If you go through this decision, you’ll see that that apparently Ms. Estes Hightower may have made some strategic blunders. One was the complexity of the lawsuit. And then the next one is that she did not distinguish that she was doing an as applied challenge versus a facial challenge. And that’s in footnote three. on page three, she didn’t distinguish that she was doing and as applied challenge, a facial challenge means that there’s no set of circumstances by which something could be done. And that’s the only way a court can declare something facially unconstitutional, is if there’s no scenario that you could create or that could lawfully be permissible example, can’t leave your house between between nine and 12. On Sunday morning, that would be that would be facially unconstitutional, because there would be no set of circumstances by which we could have that as a law that would interfere with your right to religion and worship. So we could but that would be on its face unconstitutional. So therefore There was no set of circumstances I couldn’t conceive of possibly martial law if we were in a state of emergency, but otherwise, having a curfew of that nature would not stand because it would interfere with constitutional rights. So that would be a facial on constitution. But she apparently made that mistake, the complexity mistake of making the thing tried to include everybody and the lawsuit and every conceivable issue she had. And then she didn’t thoroughly analyze the what what the court had said in Michigan and the Dulles case they did not thoroughly analyze that and I get grief for this all the time. I tell people in my state, Larry, why not you go ahead and why don’t you people watch your loss that you’ve been talking about it for years, and you have no credibility? And all we all we hear is mumbo jumbo talk to you people and I say yes, that’s all you hear is mumbo jumbo, because we’re trying to save your money until the case law shapes up and we’re waiting on a case out of the 10th circuit that hasn’t been decided yet. on appeal, and we’re waiting for that. But our registry has not evolved to the level that Michigan’s had. You can live where you want to. You can work for you want to, you can be where you want to. The registry makes no impairments on where you can go, where you can live, who you can be with, none of those things are, are imposed by the registry. So we have water, we don’t have any fees. So you can allege this punitive because I extracted they’re not charging you a year like they don’t have like charged Lake Charles Louisiana last time I heard. So so you end up with people not appreciating that their registry is not the same as Michigan’s and if you read into decision here, the court in the footnotes make it clear that that that that Miss Estes Hightower relied heavily on the Snyder case and it says especially important footnote 12 to the holding of solder was the provision that prohibited registered sex offenders for living working or logging Within 1000 feet of a school zone, that does not exist in Texas, the Texas law only has one minor restriction for people for people living, living living on campus. And so she she she jumped the gun and my view by assuming that the Sixth Circuit was gonna give her what she needed. The Sixth Circuit didn’t give her what she needed because her situation did not equate in Texas to what was going on in Michigan. And they’ve and the reporting requirements in Texas or formerly there in Michigan in terms of how quickly you had to do you have more frequent reporting and you have to report things in person that apparently allowed to be reported by other means in Texas in some states, you have to go and report everything in person thing, Nebraska is the example that any change has to be reported in person. And, and that’s not the way it should be. But that’s the way it is be in Nebraska is be Hmm. That’s the way it is. But having said that for a while.

Andy 1:05:54
What else is important? Is there anything else that you see is like a glaring strategic error?

Larry 1:06:00
The strategic error is a was the complexity and then not literally analyzing Michigan, you did with your there’s nothing wrong with her asking for money for take what you do need to tell people though, and and you will get spit balls thrown at you for doing this you need to tell people look, our situation in Texas here is not what they have in Michigan. So we are in a different scenario here. We don’t have those restrictions. And I’m afraid that if we go forward with this, although I want to win this as bad as you do, because I don’t think any of this stuff is constitutional. I’m afraid we’re going to set bad precedent because the Fifth Circuit is not likely to come down the same way the Sixth Circuit did. And then we’re going to have a decision that’s going to be guiding for years to come. And we’re going to it’s going to set us back. So I would really like to as much as I hate to tell you this, I would really like for us to wait and let’s see if if the lawmakers are constantly tinkering. Let’s see if Adding any additional restrictions, but I think we might be premature now. That’s what I would tell people and they don’t like it when you tell them that. They say that you’re just doom and gloom, and that you’re timid. And there’s something wrong with you. Nothing ventured, nothing gained. You have to have very thick skin when you tell people stuff like this because they, they hate you for it.

Andy 1:07:21
Well, okay, so are we ready to move on? Or is there anything else?

Larry 1:07:25
I think we’re ready to move on. This is our last article.

Andy 1:07:27
Yes, that was so then we are going to hit a voicemail message from our good friend Jeff, who is in Kentucky. I’m going to get it to play here in a second to

Unknown Speaker 1:07:37
Hey, this is Jeff from Kentucky. Kevin crazy to Fab Four on Twitter. I know Larry likes voicemail. So I thought I would ask this question in that form. First of all, registry is terrible. And I hate every aspect of it. But I am going to play devil’s advocate with this question. And I hope I don’t give the state legislators who might be listening any ideas anyway. Lot of our victories against the registry come from ex post facto violations of the Constitution. In order to prevent that, why don’t legislators passed law saying that the registry is your sentence or punishment, then they could ask any law they want, and apply them retro actively across the board, and just say it’s part of the status. So my question was, Why don’t legislators do that? And do you think they could get away with it? If they did? I wish everyone who hears this a very Merry Christmas And as always, as likely,

Andy 1:08:30
well, there you go. I wanted to point out that Jeff has such a sick country accent that that voice Translator thingamajigger is the turn the voice into text, they don’t understand what he says either. So I get all kinds of crazy words when he sends me any sort of text or voice to text kind of things. Anyway, there you go, Jeff. So

Larry 1:08:51
he actually makes his his question is actually quite rational. And the answer is yes, they could. And in fact, I expect that they We’ll do that as more and more successful challenges happen to the registry, which it won’t mean that they can go back and make it a part of a punishment that’s already been imposed. So a person who was convicted in 2003, they could go back and say, well, we’re going to add this to your sentence, because that, in fact, would be changing the sentence. And the sentence has been final. But what they could do, and I think they will do is, they will say that part of punishment for certain list of crimes is a period of time on the registry, which baby up into including lifetime, so there would be nothing that would preclude them from doing that. And if it is a part of your punishment, then the constitutional analysis that you would be the challenge, you’d be able to sort would be is it cruel and unusual? It is it is it excessive, and those type of claims in the environment where right now with very conservative judges, just him don’t tend not to get a lot of traction, because cruel and unusual punishment if you can chop off a person’s head or use the electric chair And you can you can extinguish a life. Criminal usual punishment is a tough standard to meet. Because, as Scalia said, it was what would have been considered cruel and unusual. At the time, I would make the argument using Scalia, I thought if I was arguing to a court that was leading in his, in his direction, that the ideology was like, Yeah, but I would argue that, well, yes, this would not have been something that been thought of the colonial times. And of course, they would have thought this was cool and unusual. If we put people on a list and did this to them, but they did that in colonial times, to some degree. They they did have, they did have bucket list that they put people on, they, they they masqueraded people around and shamed people in those times. So I just don’t know if that would be a viable, but so sorry, terms of the court say that they can’t do it. If they were do that. And so you’ve got a lifetime of registration as part of your punishment. I think they would probably be able to get away with it.

Andy 1:10:54
Thanks, Jeff, for planting that seed in their heads.

Larry 1:10:58
Well, I don’t think he planted I think that I think they’ve as a velocities, these battles, that that’s part of why they’ve extended the registration periods, as they say they, in fact, I think in Ohio prior to 2007, when they adopted their version of the AWS, I think that’s exactly what did happen. I think the court did a fixed a period of registration as a part of the sentence, they determine what tier level you were in that determined what registration obligation you had, I think in Ohio, prior to seven, it was imposed by the court and then when the when they went to the office space system, would they reclassified everybody that they it was based on the amount of time that went for your terrible fans, but but there is precedent of it having been imposed by the court as a part of your punishment.

Andy 1:11:42
Very well, um, then I guess we should, we should thank our new Patreon supporter named David and I believe you have, you actually know who David is and do you want to say anything about that?

Larry 1:11:54
I do know David and he’s a wonderful guy. He’s, he’s he’s doing a lot to try to help people that are Returning from incarceration trying to build employment opportunities and he’s, he’s been he’s been doing well in the community. And he’s been a great fan of ours and he recently was able to find the link and do the the signup. So thank you, David and, and thank you, everybody for for 2019 and the generous support. Absolutely, yeah. This will be the I guess the next episode of go out actually on New Year’s Eve day to God on the 31st. So we will have one more episode this year. But this is certainly our Christmas episode. So Merry Christmas to everybody. This will go out tomorrow, which will be Monday the 23rd I guess it is and and then everyone else will get it on Tuesday.

Andy 1:12:44
Merry Christmas. Happy New Year. Best of success. And thank you. Thank you all to listeners. And thank you so much to the Patreon supporters who support us

Larry 1:12:51
and it was a pleasure being here on Christmas Eve Eve

Andy 1:12:55
EBV. If it’s Eva cubed we’ll go to the website. Find the links and everything that’s registry matters. dot CEO and you can find all the links in the show notes if you get there. Let’s get out of here, Larry, I hope you have a great night and safe travels and I’ll see you next

Larry 1:13:09
weekend. And happy vacation remainder of your vacation.

Andy 1:13:12
Thank you so much. I’ll talk to you soon. Bye bye.

Transcribed by https://otter.ai

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