Listen to RM189: Registration Obligations Cannot Be Increased After The Fact Says NJ High Court
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Recording live from FYP Studios, east and west. Transmitting across the internet. This is episode 189 of Registry Matters. Good evening, Larry, fine sir. How are you tonight?
I’m glad to hear that. Uh, should we banter? Do we have anything to banter about or do you want to talk about the seven point whatever earthquake in Haiti that happened a couple hours ago?
I’m not even aware of that.
Oh well, I just it. There was a seven-point something earthquake in Haiti, which they always seem to get hit with all the garbage. And they have a pretty corrupt government from what I understand. And they just like, right on the other side of the island is the Dominican Republic, and they are a prosperous nation. So it’s not like it’s a resource thing. But anywho, that’s a different podcast that we’ll start producing called, like, the Registry Matters World podcast or something like that.
I’m thinking that last large earthquake was in 2010. (Andy: Could be.) The US was significant in aid including I think we took over their airport for a while, so we could bring in relief. And they signed a temporary document allowing the United States to operate the airport.
And I’m pretty sure we sent the hospital ships like the Comfort and I can’t think of the other ones name. I’m pretty sure I heard that those went down there, too.
Yeah, I don’t remember that.
But they got creamed. And then there was like, they set up all kinds of refugee camps for people that had become homeless. And there was a lot of problems with water, dysentery and things. Like, it’s just a mess. It’s just terrible. And they’re just down south of us, not terribly far. But anywho, I always forget to do this Larry. But I’m going to remind myself, here it is, like to make sure that while you’re watching on YouTube, that you click the LIKE and Subscribe and hit the Bell notification and all that stuff. But also make sure that you go do it on all the other podcast apps that you might find. I think Spotify and the Apple Podcasts are the other places. Just help spread the word, it helps people that may have similar interests to find us to get the word out and become aware of our program. Without further ado, though, Larry, please share with me what we are going to be covering this evening.
We have a boatload of articles. (Andy: Is that a technical term?) Well, there’s another word that starts with S, but I wasn’t gonna say that on a family program
So, we have some questions and some emails that were submitted that we weren’t aware of. And we have a case from the Supreme Court of New Jersey.
Awesome, fantastic. I guess then with that, so we will dive right into these things. So first off, we have this one is titled by you to be read. It says:
Larry and Andy, my cellmate and I have learned about y’alls podcast through another inmate here in Kansas. I love reading the transcript he’s been able to provide us. Quite a useful base of knowledge that this rehabilitative system they’ve got here won’t provide at all. Looking forward to reading your work and happy y’all are doing such a great service to us behind the bars still. Respectfully…
Thank you very much. Yep, we are trying to do that and get the transcripts going in. That is a program that you are heading up for sure. You want to talk about that for just a minute?
Yes, we are growing slowly with the transcripts. We got a new one this week from Hayden. Actually, Hayden is also the person who wrote this comment. But we’re looking forward to, we really need to grow the transcript service significantly. Because as we were talking about in pre-show the number of recipients as we spread the cost out, the paper, the ink and the postage doesn’t change. So, each time we add a subscriber, there’s an incremental increase for those items. But the cost of actually the transcriptionist if you’re dividing that labor, over many more subscribers, that makes that less significant. So, we’re hoping that people will keep spreading the word so we can drive up that subscription level to make it much more economical for us.
And then this will end up becoming like contraband on the yard as people are passing this instead of passing cigarettes. People provide the transcript to people with trading out bananas and, I don’t know, other fruits and stuff from the chow hall.
I have heard that happens that people will allow folks to read it for a store item or whatever they call…
But for real though Larry, one of the last places that I was at, it was cheaper to get a cigarette than a banana, which I still to this day, something that is like in the system as being the banana versus something that’s actually contraband. It was cheaper to get a cigarette than to get a banana as some extra food or nutrition, so to speak. Bizarre. Very bizarre.
That really is.
And then moving on to another letter that came in it says:
Registry Matters podcast, I have been incarcerated now going on 20 years in this messed up state for a crime I did not do. I’m getting out soon and, with any luck, I’m leaving this state. Does Texas have as screwed-up a registration law as New Mexico’s. And how long it is for? I’m waiting for my habeas to see if I get out without parole or not. Could you tell me how the registration law changes from New Mexico to Texas? I would appreciate it.
Boy, that’s a lot of loaded stuff right there.
That comes from a person in prison in New Mexico. I hate to tell you; you’re going from bad to worse. (Andy: No kidding. Worser.) Texas, everything about Texas is worse than New Mexico when it comes to how they treat PFRs. Now I’m not trying to minimize how they treat people in this state, which the supervising authorities are very harsh. And some of the county sheriffs are very harsh. They invent things that are not in the state statute. In fact, our state statute says they can’t do that. But they do it anyway. They invent requirements that are not in the law. But New Mexico has absolutely no restrictions. You can live anywhere in the state. In Texas, no such luck. Texas has a checkerboard of restrictions that are locally imposed. Our law says you can’t have any locally imposed restrictions. But Texas has them everywhere. And if it were me, I would consider Texas as a less than desirable place. Having said that, if that’s where your family support is, that’s where your job is. Sometimes you may have to go. But I would not want to go live there as a PFR.
Yeah, it sounds like… I think maybe – certainly correct me – if he makes it through supervision, then New Mexico would not be bad. But I think Texas is bad always.
That is true. If he makes it through supervision here, and I got to break bad news for him, they’re not likely to let you transfer. So, if you have any supervision, you’re going to be stuck in New Mexico until you finish that. But if he makes it through supervision, and gets over to Texas, their registration laws and their restrictions are far crappier than ours. We don’t have any occupational debarments. Now, when people hear me say this, they say, well, I can’t get a job. That’s different than it being prohibited by statute. The fact that a company chooses not to hire you is a whole different scenario than having a preclusion and a prohibition from holding certain jobs. All over the country, they have occupational restrictions, saying a PFR can’t do this from simple things like driving an ice cream truck to working in an amusement park. Somehow or another, in amusement parks in case you haven’t noticed it, people are snatched all the time. It’s like the proverbial… it’s like the hovercraft. If you go to an amusement park, I guarantee you every day that an amusement park is open, there’s a minor abducted in plain sight of all the security, and they’re snatched up and they’re taken out. But anyway, back to the point. There are no restrictions here. The landlord may not rent to you, but you’re not forbidden from living there. That’s between you and the landlord if he or she wants to rent to you. You’re not forbidden from holding jobs in New Mexico as you would be in Texas. So, if it were me, I certainly would not be headed to Texas.
Yeah, that was another one of my first exposures to when I started following NARSOL was a case there talking about Home Rule. Do you want to describe that just really quick about that case? That was where the local people wanted to add restrictions that weren’t existing. Is that semi-right in the characterization of it? (Larry: Yes. Are you talking about the Texas case?) Yeah, yeah. Back like six-ish years ago.
Yes, there were small cities of less than 5000 in Texas that are referred to as general law cities. And the general law cities were not permitted to have any restrictions. But the home ruled cities, the larger cities, were allowed to have restrictions. And there was a challenge, because of a general law city, forget which one it was, had had imposed restrictions. And since it was not permissible of course, I shouldn’t say of course, but they did win the challenge. What was of course gonna happen was they were going to change the law to permit general law cities to have the same power that home ruled cities have. And the people in Texas looked at me like I had been smoking some kind of wacky weed when I told them, this is what they’re going to do. And they said, Larry, there you go again, you’re always so negative. And I said, well, that’s what they will likely do because it’s not easy to look at the constituents in the smaller towns and say, now, this is a good thing. We’ve got cities all over our state, they’re allowed to protect their community, but we’re not going to allow you to protect your community. That’s a tough political position. And that’s why it was unsustainable.
I gotcha. Okay, well, then. So that’s the end of that. And we’ll move on to this next one says, Dear NARSOL. And let me make another point very clear. We are not NARSOL. We are not. We both have relationships with NARSOL, but we are not NARSOL. This is an independent production. We share some information, we share contacts and stuff like that, but otherwise, we are not NARSOL. Anywho, so it says:
Dear NARSOL, a couple of questions, do you have a book of cases pertaining to PFRs that may help us better like a Georgetown Law Journal? Have you thought of fighting the registries and SOs as a class, or a type of race, since we have been singled out like those who suffered racist discrimination back in the 1960s. A class action lawsuit may be able to be filed using these type of principles with the goal to eliminate the registries, singling out SOs from others convicted and reducing sentences. If you have any comments, questions or suggestions, please let me know.
Interesting. So Larry, can we file? Do you think that we could get the PFRs in on a class action suit of something related to discrimination of something like race?
Well, unfortunately, that’s not a protected class.
Oh. What’s a protected class? Let’s talk about that just briefly.
Well, it would be by statute, there would be some civil rights protection. And you look at the law, like for housing discrimination, you can’t discriminate on age, race, familial status, national origin, I forget all of them. I used to be in that business. But there’s these things you cannot discriminate, but you can discriminate for other reasons. And that’s what people don’t understand. There’s no statute that says you cannot discriminate in any conceivable situation. There are specific protections saying you can’t do these things. And generally, that’s built around things that you cannot help. We have acknowledged that you cannot help where you were born. So, if you’re from Ethiopia, that wasn’t a choice you made. Your skin color, it’s not a choice that you made. Being a PFR is a choice that you made. Right?
Okay, yeah. Oh, yeah, totally. Except for that other guy, he got convicted for a crime he did not do blah, blah, blah.
Well, assuming that your conviction has merit to support it. Whether or not what you got convicted of should be against the law or if the penalty should be as severe as they are, that’s a separate discussion from whether or not you chose it. But if you’re convicted, legitimately, by your admission, or by a finding of fact by a judge or jury, you did choose to be in this position. So therefore, it’s much more difficult to convince lawmakers to give you protection for something that you could have helped. And particular the way the average citizen would look at that would be that you would be doing that to the detriment to the rest of society if you protect the PFRs. That’s what the average citizen would say. But have we thought about filing a class action lawsuit? Of course, we’ve thought about it. That phrase and that term has been around for a very, very long time. The problem is that class actions are very difficult to manage and to get certified. We’ve had guests… I don’t know if we’ve had one on this podcast or not, but we’ve had guests I know on the conference calls I used to host where we’ve hammered on what it takes to certify a class and the criteria for certifying class action. If it were just as easy as going down to your local stamp-making store and get something that says class action and stamping across the top pages of the complaint, if that made something a class action, that would be fine, except it doesn’t. Stamping it with big red letter saying class action doesn’t make it a class action. What makes it a class action is a number of tests: there being a commonality of the claims, judicial economy, the law firm is able to manage and have communication with the class members in some fashion. And there are hurdles to jump through. And guess what? The states do not want these cases certified. So, they oppose all efforts to certify class action. The analogy would be when you’re fighting a company for discrimination, the companies do not like you to be able to band together in an alleged pattern and practice. They want you to have to prove out your individual allegations of discrimination. You see what I’m saying? (Andy: I do. Yeah.) And the courts have been very hostile to those who try to piggyback on pattern and practice of the employer and the admissibility of evidence of those claims. And the conservative Supreme Court that we’ve been under for some time now, they have been very hostile towards employees that want to say that this is a pattern and practice of this company. So, it sounds like this particular letter writer would be for a class action on this type of thing. But I would be curious to ask him, and we’ll send him the transcripts so he can respond if he chooses, would you be just as sympathetic to those who are bringing a cause of action against a giant corporation? Would you want them to be able to do a class action? Or would you want them to have to prove out their obligations individually?
I see. I remember, the biggest example I can remember, this is probably 30 years ago, where Firestone had made some defective tires. And I’m pretty sure they were like on light trucks, maybe, I think they were SUVs from Ford. And they would like blow out and then going down the interstate at 70 miles an hour. And then everything starts flipping. That was a class action, if I’m not mistaken, because you said a word in there that reminded me of it. Was the similarity of it, I think, the way you worded it was different, but something of the… oh, it was the commonality of the claim, like these people are all saying the same thing that the tire just kind of blows up while they’re driving down the road. And they need to do something. And then you said judicial economy. Like every one of the PFRs, we probably all have very unique cases. So, there wouldn’t be any commonality between us.
There would be some commonality between us depending on what the challenge is based upon and predicated upon. But each individual may have completely different facts that would render… just because you don’t like the registry doesn’t mean that you all have the same complaints. It may not affect some people in their employment. It may affect others dramatically. Right?
Yeah, totally. And I would be willing to bet that the majority of what people are going to bitch about is access to jobs, access to housing. If we could achieve those two hurdles, then we would have a very radically different landscape that we’re trying to fight through. But we have people living under bridges and whatnot. And travel, someone’s saying in chat. Sure. Interstate travel is something that all of us are worried about. And I’m poking fun at the person in chat because someone that’s living under a bridge in a cardboard box, they want to travel someplace where they can get a house.
Yeah, they want to travel to, like, maybe to a home.
Yeah, exactly. Alright, well then, I guess that we can park that one there. I don’t think there’s anything else there. So it has been thought about but there’s not much more to go on from that because I can’t see that it really applies to us from the individuality of it. And like you said the states, they would not be in favor of doing this.
Absolutely not. They will fight a class certification tooth and nail and they usually win. But we do have maybe from a podcast subscriber or transcript subscriber named Sean, we received a postal letter. And did you want to read any of this on the air?
I don’t think I want to read any of it on the air, but definitely wanted to acknowledge it. And I don’t know that there was anything in there in the information provided that we weren’t aware of, but I will bring up the CorrLinks thing. We’ve received… these all have come to me that I didn’t really know what was going on, I get some message that says John Doe is trying to message you over CorrLinks. And I think I asked you some time about it. And you’re like, yeah, that’s just the email system that the federal prison system uses. And I think that I’ve made an account, but I don’t know. But I have not, I looked through my history, I haven’t received any messages from this individual requesting that we receive email from them. So, I really don’t know. But otherwise, that was the only novel piece of that letter to go over, I think we’ve heard of the individual being messaged, I think there was a case listed. I think that everything in there was pretty much known to us already.
I remember I created a CorrLinks account many years ago for legal. And the volume was so horrendous. And the way I remember it working, and I could be wrong because it’s been a number of years ago, but each person would send an email after the account was created, and they would request that they be added as a contact. And you would accept that person and then they could send you messages. And I accepted all the requests of people. And first thing you know, I just had a volume of emails I could not possibly respond to. I don’t have a CorrLinks account, and I apologize. I’m not going to be able to have a CorrLinks account. I cannot possibly even if I work 24 hours a day, respond to the volume of emails that people ask legal questions and whatnot. So, if we can’t take your question on the podcast, if it doesn’t help others, I’m not going to be able to respond to you individually via CorrLinks.
Yep, I hear you.
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And then moving on from there. We are at the point with this case from New Jersey. Anything before we want to dive into this?
No, we can do the case. Tell me about what we’re doing.
All right. Well, you people put this case in here named In the Matter of Registrant J.D-F, which I don’t know what that means. But decided by the New Jersey Supreme Court a few days ago. Larry, I’ve read it, and I don’t see the reason why you’re so giddy. What is this case about? Didn’t we talk about this? I seem to remember we talked about this on a previous episode.
I vaguely recall that we did talk about it. But I don’t know which episode it was. But we talked about this issue. It’s an appeal. The court was asked to decide whether New Jersey Statutes Annotated 2C:7-2(g) (subsection (g)), which is a Megan’s Law provision, that bars certain PFRs from applying to terminate their registration as PFRs applies to a registrant who committed Megan’s Law offenses before the date on which subsection (g) became effective, but was convicted and sentenced after the effective date. That’s what this case is about.
Alright, well, I did go look it up. We covered this way back in June of 2019. It was Episode 84. And I see that in the subsection (f) permits registrants except as provided in subsection (g) to make an application to terminate the registration upon proof that they have remained offense free for at least 15 years and no longer pose a threat to the safety of others. N.J.S.A. 2C:7-2(f). As you’ve stated many times, the legislatures just cannot help themselves when it comes to amending registration laws. They added subsection (g) which became effective January 8 of 2002. Subsection (g) prohibits offenders from applying to terminate their registration if they have been convicted of certain enumerated sexual offenses or have more than one sexual offense. What was the actual issue before the court in this appeal?
Well, that’s a good question. The issue was determining whether subsection (g) was impermissibly applied to the registrant in this case, who committed a series of sexual offences between May and August of 2001. Remember that magic date of 2002? (Andy: I see it, yes.) But was not convicted for those offenses until December of 2002. The Trial Court and the Appellate Division, which is the mid-level court, held that subsection (g) applied to the registrant, to the challenging party, because he was convicted after the subsections effective date. That’s what happened here.
So, before we get too deep into the legal arguments, what did this person do that placed him on the registry to begin with?
Well, he was 20 years old when he was working as a manager of the McDonald’s in Hillsborough, New Jersey. He participated in interviewing and hiring two teenage boys, A.S. aged 15, and M.V.S, aged 16. They use initials when they’re minors. At some point between May 1 and August 1, 2001. Registrant approached A.S. in the men’s bathroom and told A.S. he would help him fix his disheveled clothing. Registrant then touched the boy between his legs, placing his hand on A.S.’s genitals over his clothing. And during the same period, registrant on four or five occasions kissed M.V.S. or otherwise touched him inappropriately in a sexual matter. That’s what the underlying conduct was.
But he was 20 at the time. Okay, so I’m guessing that there was criminal charges based on the boys allegations?
There were indeed. I don’t know if the boys compared notes, but that type of thing tends to circulate in a situation when that’s happening. I suspect they probably did, but it was not in this case. On February 11, 2002, registrant was indicted and charged with Third Degree aggravated criminal sexual contact and third degree endangering the welfare of a child for his conduct towards A.S. For the acts against M.V.S., he was charged with two counts of fourth degree criminal sexual contact.
Wouldn’t that apply to the Romeo and Juliet, kind of like the four-year age difference piece?
Well, it would have had it been consensual.
Okay. Oh, okay. All right. I gotcha. So what I found really interesting is that registrant was tried by a jury and convicted of all but one charge. The jury found registrant not guilty on count three. He was sentenced on May 21, 2003, to concurrent three-year terms of probation on counts one and four. He was required to serve 60 days in county jail as a special condition of probation. The final component of the sentence, he was ordered to adhere to Megan’s Law registration requirements and community supervision for life, or CSL. This sounds like a pretty lenient sentence for having been convicted by a jury. And I guess it illustrates your point that you’ve made that not everyone goes to prison, particularly in regions outside of the Southern United States. I have known people to receive much harsher penalties for doing far less. This is not fair, Larry.
Well, if you say so, but it’s fair because the people in New Jersey chose to impose less harsh sentencing schemes that what are typically decided by the people in the south. I mean, what do you want to do? Do you want to have the states abolished where that they can’t have their own sentencing schemes? It’s fair to the extent that’s what the people in New Jersey decided versus what the people in Alabama decided completely different.
Hmm, all right, well, then on February 4 of 2019, registrant filed a motion to terminate his Megan law registration and his CSL requirements. He submitted an affidavit alongside his motion certifying that he had not been convicted of any offence since the events of 2001, which the state later confirmed. Registrant also certified he had maintained gainful employment throughout his CSL community supervision for life, and that he had never failed a random drug or alcohol test. Additionally, he submitted a psychosexual and actuarial assessment completed by Dr. James Reynold Ph.D., stating that, with a reasonable degree of psychological certainty, that registrant is not likely to commit another sexual offense. He does not present a risk of harm to others in the community, and his risk of harm will not increase if the court determines that it is appropriate to relieve him of his registration obligation and remove him from CSL. Well, Larry, it sounds like he did everything you recommend. Why did he not get off?
Well, that’s a good question, because the state accepted Dr. Reynold’s conclusion that he no longer presented a risk of harm to others in his community, and therefore, they did not oppose him being released from the CSL requirement. However, the state objected to releasing him from Megan’s Law registration. In the state’s view, subsection (g) made him ineligible for release, because he was convicted of more than one enumerated sexual offense.
Um, I thought that that provision making him eligible for removal was not enacted until after the commission of his offenses.
That provision that made him ineligible was not… that is correct. It was not, you’re absolutely correct. And that was the relevant point for the court. The registrant contended that both at the trial court and the appellate court erred in their retroactivity analysis by using the dates of his conviction and sentencing rather than the date of the actual conduct. According to registrant, without an expression of contrary legislative intent, new civil laws – and my screen just went blank – may be given only the prospective effect as the date of triggering conduct. In registrant’s view, his date of conviction does not create the legal consequences under Megan’s Law. Rather, imposition of subsection (g) is a legal consequence of the condition of a specific offense that merely memorialized in a conviction. He further argued that procedural due process and fundamental fairness prohibit applying subsection (g) to registrants’ whose offense conduct predates the effective date of that law. And he said that registrants lacked “‘prior notice’ and ‘fair warning’ of the consequences of their conduct.”. That was his argument.
Let me see if I can make some sense out of this and make it a little less convoluted. Until January eighth of 2002, subsection (f) read as follows: A person required to register under this act may make application to the Superior Court of this State to terminate the obligation upon proof that the person has not committed an offense within 15 years following conviction or release from a correctional facility for any term of imprisonment imposed, whichever is later, and is not likely to pose a threat to the safety of others.” But Effective January 8, 2002, the Legislature added subsection (g) and amended subsection (f) to begin with the phrase, “Except as provided in subsection (g) of this section a person required to register under this section who has been convicted of, adjudicated delinquent, or acquitted by reason of insanity for more than one sex offense as defined in subsection (b) of this section or who has been convicted of, adjudicated delinquent, or acquitted by reason of insanity for aggravated sexual assault or sexual assault is not eligible under subsection (f) of this section to make application to the Superior Court of this State to terminate the registration obligation. This person believed that since his offenses were committed before the law was changed, that it was unconstitutional to apply subsection (f) to him. I don’t even think that’s the simplified version. But is that the simplified version?
That is the simplified version. (Andy: That’s ridiculous.) At the time he committed those offenses multiple times, he would have been eligible to be removed had 15 years past. But in 2002, they changed the law. And since he wasn’t sentenced until after the law changed, they said, well, this applies to you. You’re being sentenced after this date. And a true ex post facto analysis is based on when the conduct occurred. And the court actually agreed they stated, quote, the fact that the plain text of subsection (g) bars persons convicted of more than one sex offense from terminating their registration obligation does not in our view, mean that the pertinent date for determining whether subsection (g) would apply to a particular registrant is the date of conviction. The statutes’ reference to those convicted persons merely serves to define the class of people who may be subject to subsection (g)’s provisions. Again, quoting, we hold that the relevant date for purposes of determining whether subsection (g) is effective to a particular registrant is the date on which the registrant committed the sex offense that would otherwise bar termination of registration. That’s what the court decided.
Now, I think I see why you are so happy about this, this could be the beginning of a trend in courts going forward. The New Jersey Supreme Court has essentially held that registration obligations cannot be increased after the person committed the act, because to do so would deprive the person of fair notice of the consequences of their action. That almost sounds like ex post facto.
Yes. And this was a unanimous decision. They get it. They got it. Maybe the day is ending when you can change a regulatory scheme. We’re seeing decision after decision. Remember, that’s what happened at Michigan, they just couldn’t stop themselves, heaping on more and more requirements. Law enforcement, we know you listen to us. Lawmakers, we know you listen to us. Stop while you’re ahead. You’ve got all these decisions saying that the registry is civil and regulatory. If you would just stop, but you can’t do it.
I mean, that’s where I was going to ask you about if this is quote unquote, a civil regulatory scheme, then they can pile on restrictions afterwards, which I’m going to answer my own question, which probably isn’t appropriate. But that’s where Martina Mendoza, whatever that whole thing is, that’s where we would kick in, and we would find things that are disabilities and restraints, and the registry applies disabilities and restraints to people. Therefore, it’s punishment. Right?
I would take a slight issue with you saying they can pile on restrictions, that is the whole problem. With a regulatory scheme, you can alter a regulatory scheme. But you can’t do it in a way to inflict more punishment. I think I’ve used the restaurant example before. If we learn through the advances in science that we were wrong about holding temperatures, and that they need to be warmer, and your old steam table won’t maintain that holding temperature, we’re not trying to punish you by telling you, you can’t use that steam table anymore because it doesn’t achieve the desired temperature. We’re telling you, you have to replace that steam table, because people might get sick, and they might die if you don’t. So therefore, we could change that regulation. And we could apply it retroactively. You have to retrofit your kitchen.
You’d have to retrofit. That’s what I was gonna say and then if you don’t, you can be held to some level of punishment. I guess at some point in time, the health inspector would shut down your restaurant because you’re not serving safe food.
And conceivably, if you continue to defy the health authorities, they would lock you up.
But the registry, I’m trying to make, like the real-world comparison, that all we have done with registry laws is made existing very challenging. It’s not that they have changed the laws making it where your food is unsafe, so to speak. But that now you can’t live here. And we don’t really care where you live, but you can’t live in this neighborhood because it’s within 1000 feet of a school and pile on more things. And I know I use the term piling on punishment, which but that’s what they have done, which they have been allowed to do until things have gotten so shitty that we are where we are.
Well, that’s my whole point. You can’t continue down this path. If you want your precious regulatory scheme to stay in place, you’ve got to stop punishing people with registration. The mere act of registering someone is not unconstitutional. Let me repeat that. So, you can send an email to me. I’m saying this, the mere act of registering someone is not unconstitutional. We register young men for the draft. We register schoolchildren. We register drivers, we register voters. I mean, we can go on and on. Merely being registered does not punish you. But they won’t stop at that. They can’t stop. Merely collecting information on the day of your conviction and saying congratulations, you’re now on the registry. We’ve taken your mug shot today. We’ve listed this offense, this conviction date, and it will live in perpetuity. That’s not unconstitutional. If you were to be allowed to go live where you want to, work where you want to, carry on your life as a normal person. The fact of the matter is it’s a historical marker in your life that happened. The problem is they continue to want to punish people and you can’t do that with a civil regulatory scheme.
Otherwise, it is punishment, and that would be ex post facto.
That is correct, unless that punishment was available at the time you committed the act. The New Jersey Supreme Court said that this removal process at the time he committed his offenses would have been available to him had he gone 15 years offense free, which he did. They said, therefore, the notice that you received at the time you were convicted was that 15 years from now, you’ll be eligible to be removed. It’s not a guarantee, but you would be eligible. For the state to change that rule after your conviction and say, gee, we were just kidding. You’re not going to be able to get off after 15 years. That’s wrong. And they were stopped.
Chuck in chat says so how can this decision in New Jersey help all of us? And let’s say in a particular state? I won’t say it. But so in any state, how can we use this to help us in whatever the other 73 states that we have? How can we help there?
Well, we would cite this as a compelling, it’s not binding, but we would cite this as well reasoned, compelling case out of the jurisdiction. And we would add it, if I were writing the brief, I would add all the decisions that I could come up with that have talked about how you can’t change the rules in a way that impairs what the person’s expectations were at the time they committed a crime. That’s what fair notice is all about. So, what you would do is you would file a challenge in whatever state he’s in, you would add this to the precedential cases that are not binding, but you would say this is persuasive authority. Here’s what the New Jersey Supreme Court said.
And for clarity: so this is the highest court that exists in that state. And I know I joke about the number of states, in these 50 states and the handful of territories. But that is the highest court for New Jersey. So, it has no bearing directly on any of the other 49 states. So how does this then… you use it as persuasive authority, I think you said, and then you file some sort of similar case where they have enhanced the restrictions, the registration on you, after the fact. And you say, hey, these people in New Jersey, they found that this is problematic, then you also should find it problematic? And then you end up with controversy. This is where I really want to go is you end up with a state going, nah, we don’t care. That’s how it ends up in the Supreme Court.
Possibly, but not necessarily. But yes, possibly, you’re more likely to get something with the Supreme Court when you have splits among the circuits. But you can have things go to the Supreme Court if state Supreme Courts are coming up with a fundamentally different decision on key US constitutional questions. So, you could get there that way. The highest court in the state, you can file a cert petition with your Supreme Court asking for review. I don’t see that happening in this case. If there’s a constitutional claim federally, and you’ve exhausted the state Supreme Court, the highest tribunal, whatever they may call it in a particular state, you can file a cert petition. This guy has no need to. He won. The state’s not likely to because it’s a unanimous decision. And I just don’t see that. This is a blatantly obviously thing. You can’t do this. You know, the guy had expectations that 15 years of good behavior, he’d be eligible to petition and then they change the rules. Can’t do that, folks.
Okay, I gotcha. Um, do you think that they will appeal?
I don’t think so.
And why? Wouldn’t they? Like you always say, Yes, they’re going to. It’s like always a default answer.
Well, in this particular case, it’s unanimous. That’s one reason. And I don’t see that there’s… the way they got there in their decision making, it really wasn’t dictated by the US Constitution, per se. I mean, they tapped and danced around it, but the way they got there, I don’t think there’s gonna be a cert petition. But I mean, that’s how they’re wired. They could do it.
Okay. Well, there we go with that. So that’s from New Jersey. Very good. And Alright, we have some articles to cover. Some people very much like articles, and we’re going to fill up the time. We got about 10-ish or 15 minutes to cover these articles. So, you have about 90 seconds to tell me what you think about each one of these. How about that? (Larry: 90 seconds?) Yep. All right. So first one comes from NBC News. One state is trying to make pregnancy in prison slightly more bearable. The Healthy Start Act allows pregnant mothers to serve their sentences in Community alternatives such as halfway houses, or addiction rehabilitation centers. No! we can’t have this, Larry. We need to shackle them to the beds while they’re giving birth. I think that sounds like a better plan
That’s out of Minnesota. And I didn’t really have a lot to say about it other than I’m pleased… mean, I don’t understand being a parent, because I’m not one. Trying to imagine what it would be like if you gave birth, and 30 seconds later, they ripped the child from you. And you never saw it again. That would have to be devastating.
Can you describe to me, I mean, I guess if you have already, like post-parented your kid, like they have already been out of the womb for some period of time, and you get hauled off prison, you are effectively removing the person from being a parent at that point. Why would this be different?
Well, again, I’m not an expert on any of stuff, since I’m not a parent, but I have been told that that period of time after birth, the bonding that takes place, there are people who do breastfeeding because of health reasons, rather than feeding them that contaminated formula that that we produce.
Hahaha. Okay, alright, we’re gonna get hate mail for that one.
Well, it is contaminated formula.
I remember that happening a decade ago. It’s probably more than that; 15 years ago.
But I think that this was a significant part of the birth process and the bonding process, and they pretty much take the child away almost immediately. And you are correct. When people go to prison, if you have a seven-year-old, you’re separated from the seven year old, but you’ve bonded and you’ve had some time with the seven year old. And you have some rudimentary visitations. Be it by video or by telephone or by sitting behind the plexiglass or by going in on visitation day and actually have contact visits. I think there are prisons who still allow contact visits, believe it or not. But for the newborn, I think it’s critical that there be some connection with the mothers. It’s kind of like if a giraffe is born, they have to imprint on their mother. If you take the giraffe away, they imprint on the wrong thing. I mean, I’m not comparing humans to giraffe, but I think it’s important that we allow some time with the children. And I don’t understand why prisons can’t be just a tad bit more accommodating. I know they’re running a prison. Not a daycare center. I get that. But…
Okay. No, I agree. I was just kind of being snarky and a jerk on that one. But yeah, and that was from Minnesota. So hey, go Minnesota for being like accommodating and kind to people giving birth. But now you know, Larry, they’re going to get themselves pregnant, knowing that they’re going to go to prison. So, they’ll get some kind of compassionate treatment. That’s what’s going to happen.
Of course it will.
The next one comes from the crime report. “Why blanket registration of youths as sex offenders is bad public policy.” Oh, boy, tell me what you want to go over with this one.
Just so outraged that any state does this. I can’t be more blunt. Our good friends in Texas are one of a few states which continue to register youths publicly on registration websites, even if you’re determined to be AWA, Adam Walsh Act compliant, you do not have to put these minors on the websites. It’s not required. Why are you doing it? I don’t understand it.
Alright. I need to back up one. thought I had this one already slated to go. But the next one comes from courthouse news. And the title of it is “Lawsuit over fatal police shootings of mentally ill man in Bay Area suburb headed for trial.” And tell me what you think about this one?
Well, I’m always glad when cases are not dismissed on procedural grounds. And the reason why I put this in here is the federal judge denied the sheriff’s department’s motion to drop the case. And I’m just excited that anytime a person gets their day in court, it’s a great day. And this judge decided that there’s going to be a trial.
And we wanted to cover possibly something here about summary judgment.
Just vaguely. Summary judgment gets under my skin because it does so much harm. Lawyers use it inappropriately, and it’s a valuable tool. But summary judgment is not appropriate in a lot of cases where it’s requested. So therefore, I had highlighted some sections in the decision, which I can’t find at the moment. So I’m stumbling around trying to find it. (Andy: I got it.) Did you want to read it, read any of that?
Yeah. Yeah, I’ll read the whole yellow thing. It says summary judgment is proper if the movent shows that there is no genuine dispute as to any material facts, and the movent is entitled to judgment as a matter of law. The purpose of summary judgment is to isolate and dispose of factually unsupported claims or defenses. The moving party always bears initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, demonstrate the absence of a genuine issue of material fact. If it meets this burden, the moving party is then entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of the case with respect to which it bears the burden of proof at trial. To preclude the entry of summary judgment, the nonmoving party must bring forth material facts, i.e. facts that might affect the outcome of the suit under the governing law. Could you give me an example of this in something of like normal English of what this means?
Well, it means when your posturing your case, when you do your preliminary stuff, at some point, the judge is gonna want to know, is it going to trial? Or is it going to be resolved by settlement? Or is a trial necessary? Well, lawyers are humans, amazingly, they don’t want to do any more work than necessary. And a summary judgment means that there’s not a trial, it means there’s a request for a decision on the pleadings, as a matter of law that I’m entitled to this. The infamous Smith versus Doe case from the United States Supreme Court in 2003, was decided on summary judgment. But on summary judgment, folks, the party moving for summary judgment, which was the PFR, in that case, when you make that motion, every defense that would have been asserted, had the case gone to trial is presumed true. All inferences, everything is resolved in favor of the nonmoving party, because the nonmoving party did not get to have their day in court to show if their defenses were solid or not. So therefore, you’re handing the defenses to the court as facts. And people are all over the Supreme Court 20 years after the fact. I still hear this: well, they found that recidivism was high. No, they didn’t. That was a fact that was handed to them from the litigants. The litigant said, Judge, there’s no reason for a trial here. And therefore, the fact was recidivism was high. That’s one of the things Alaska would have argued. Well, when you do summary judgment, you don’t have a factual record.
And that thing of the frightening and high recidivism rate came from that magazine article, blah, blah, blah, that everyone has heard about, I assume, from the Psychology Today, I believe. And that said that the recidivism rate… but that was under superduper, isolated conditions of like, my understanding was those were like damaged human beings, where you would psychologically determine them to be the most horrible people on the planet. And I’m getting corrected in chat. I can see it coming. But not just all these average runs of the mill kind of people that make a really crappy decision. But that was not a thing that could then be brought in court later, because we just said, Oh, yeah, we’re just going to carry this through. It just got passed through. So, then the Supreme Court goes, well, yeah, of course the recidivism rate is frightening and high, and it gets cited 1000 times.
That is correct. Now, when I say there’s no evidentiary record, there’s a limited evidentiary record when there’s summary judgment. Summary judgment is a valuable tool to use in the right circumstances. But despite what the Supreme Court said about summary judgment, that was not what decided the case. What decided the case was there were no disabilities or restraints. If you’ll read the decision, and read it carefully, that’s when they did the Kennedy Mendoza Martinez seven factors of the factors they consider relevant. I don’t think they considered all seven of them. But they did not find any disabilities or restraints. You can live where you wanted to, you could work where you wanted to, all this kind of thing. Everything has changed since then. But they could not say, gee, we have a feeling that someday there might be a constitutional problem with registration. They have no way of knowing that. They were tasked with determining if the registry as it existed at the time they were reviewing it was unconstitutional. And I know I’m really going to get hate mail on this, but it wasn’t at that time.
I understand completely. Let’s move over to the next article that says “Wisconsin judge to plead guilty on federal child porn charges.” Pending court approval, the judge’s plea agreement would resolve cases in state and federal court accusing him of uploading CP more than two dozen times using an online messaging app. Why?
I feel bad. The only thing I put this in here for was we were going to get into a deeper dive on the plea agreement. We don’t have time for it. But this is an example of when you do a plea agreement, you can globally resolve the cases. The feds are resolving this case, the state is bowing out, there won’t be any state charges. And I guarantee you, I don’t guarantee it, but I suspect that at some point down the road, there’ll be “Well he got away with the other stuff that he should have been…” No, this was to settle everything. So there’s a global plea agreement that’s going to take care of anything that he would have been charged with in the state as well as the feds, but there’s not enough time. Maybe we’ll come back to it. But por judge, he’s gonna find… I’m sure he had a lot of ambivalence about PFRs. When he finds himself behind the federal prison walls, and we’ll make sure he gets on our podcast and on our newsletter list, he’s gonna find that it’s not quite what he thought.
We should make a note to find him so we can send him transcripts when he gets to where he’s gonna be. (Larry: I plan to do that.) That’s funny. That’s genius. Um, let me circle back really quick. I have been corrected in chat that says, nope, the authors of Psychology Today article made it up, the recidivism rate. I thought that they had evidence to support it, but I’m being told that they completely made that whole thing up. Which further like to circle back to this summary judgment thing, if that was totally made up, then that has stood the test of time for 20 something years as being the recidivism rate is frightening and high over something completely bogus and made-up Larry.
Yeah, well, but see, that’s, I don’t even think about recidivism because that’s not what decided the case. I’m in denial as far as the listeners are concerned. You know, Larry doesn’t think much about recidivism. Because you don’t win cases on recidivism. You win cases on showing disabilities and restraints.
Yes, I know. I totally got you on that one, but that one always get cited. Well, the Supreme Court said, but that said because it was completely poppycock at the time. That’s the only reason I’m bringing that up. Okay, then “Federal judge restricts Sheriff’s Office attempts to dismiss lawsuit challenging predictive policing program.” That is a lot of P’s to say that. That is a very hard sentence to say Larry.
It is, indeed.
It says families who filed the lawsuit will have their day in court. So, what is this all about?
Which article? I’ve had a senior moment here.
This is the “Federal judge restricts Sheriff’s Office attempts to dismiss lawsuit challenging predictive policing program.”
That was Tampa area, the Pasco County Sheriff motion to dismiss the lawsuit. And the quote I put there, “Today’s decision is an important step toward the ultimate dismantling of the program of predictive policing. Ari Bargil, an attorney for the Institute of Justice which represents the families. Again, you’re going to get your day in court. Fantastic thing.
Okay. Then from the Associated Press, “Arkansas Sheriff convicted of oppressing two jail inmates.” Come on Larry, we know that the people that go into the jails are perfectly honorable and good people and they just want to see the inmates there rehabilitated. They’re not going to go in there and mess with them.
So well. The verdict came after trial evidence show of Franklin County Sheriff Anthony Boen used unreasonable force to punish pretrial detainees on two separate occasions. Trial showed that on November 21, 2018, Boen pushed the inmate into the floor and grabbed his hair. What does that say hair?
It says hair beard. But it sounds like it would have been hair and beard during an interrogation.
So it also showed him on December 3rd, he punched a detainee multiple times while he was shackled to a bench inside the Franklin County Jail not resisting.
I know why you put this in here is because pretrial he is assumed to be innocent and should be afforded some kind of treatment, I guess you could say.
Well, that wasn’t so much thinking along those lines, I’m thinking about accountability. We’re finally seeing accountability. Folks, that’s all we want. We want police, we know 99.8725 percent are wonderful and as pure as the wind-driven snow, we get that. But there’s that small fraction that are not pure as the wind-driven snow and we want you to stop covering up for them. We want you to quit justifying and claiming their behavior is normal when it isn’t. And we want them held accountable just like every other person who breaks the law. That’s what we’re wanting. And we’re getting more and more of that. That’s why I put it in here.
Okay, moving over to Business Insider, “Watch American Airlines staff use duct tape to restrain a 13 year old boy accused of trying to kick out a window.” Now that we’ve moved over to the Registry Matters travel program. Why in the world did you put this in here?
I put it in here because you’ve heard me gripe about using hard restraint on young people. So, this is an example, I know police officers, you have a hard time learning new things. But here’s an example of a 13-year-old who was potentially jeopardizing an aircraft. If one of those windows were to let go, and I doubt a 13-year-old is gonna kick it out. But if it did puncture, and break the seal, you would have a very bad situation. And, and they did what was very reasonable and prudent, they grabbed some duct tape, and they restrain the boy until the plane could make it safely to a destination so the boy could be handed off to authorities. You don’t need to put leg shackles and handcuffs on 10, 12, 13-year-old children. Just watch this American Airlines thing. And you can use soft restraints. You can use sheets, you can use all sorts of scarfs. Anything to tie a young person’s hand so that they can’t be violent. You don’t have to do the handcuff thing. Try it. You’ll find it works.
I gotcha. Over at Reason Magazine, “A federal cop devised a bogus sex trafficking ring and jailed this teen for two years. The cop can’t be sued.” I love Reason Magazine, I should read it more regularly. The most powerful officers are held to the lowest standard of accountability. This seems horrid.
Well, it ‘s that immunity stuff that we talk about. You know, those liberal pointy-heads are trying to do something about immunity, but they’re getting a lot of pushback.
Anything else on this one besides that? I mean, I’m bothered by it was a bogus sex trafficking ring and jailed somebody for two years over something that didn’t exist.
Well, two years is not really that long.
And he’s a teen. He’s got the whole rest of his life. Right?
That’s right. I mean, just take it like a good sport and move on and put it behind you and don’t even complain about it. I mean, no.
Don’t hold a grudge.
Yeah. Move forward from here.
if you say so. All right. Well, then Texas, this is NBC news again, “Texas is the first state to make buying sex a felony.” Will, this helps stop trafficking victims? Maybe. That would be my guess. What do you want to do with this one?
Well, just wanted to make point of I know you just get yourself in a palpitating condition about bipartisanship. This passed unanimously. So that was good it was bipartisan, but is this good public policy to make a felony out of buying sex?
Yeah, I don’t think so. And the Patriot Act was pretty much unanimously signed. So that would be about as bipartisan as I can ever think of anything being and I don’t think that’s a very good bill.
Actually, there was some pushback on those type of things, but they were they were vilified and they were accused of being not patriotic and finally they were able to pass it. You can’t filibuster indefinitely when there’s a lot of public pressure and that’s what happened with a lot of those 911 era reforms. A lot of them we regret now. We regret a lot of that stuff that we did. We found out that maybe we jumped the gun, but that’s another program.
Three more and do these quick. So then from the Washington Post, “An Arizona State Senator has resigned days after police say he apologized for molesting a teen boy.” Lovely
We don’t condone what the allegations were here. But as a general rule, you don’t want to make a telephone call and admit to having…
Whoops. Yeah, that sounds bad.
When a person calls you and says, why did you do this to me? You should have a tad bit of suspicion that there might be something underlying that phone call.
I see. So don’t admit to anything and prison phone calls are generally monitored.
So well he wasn’t in prison, but he got arrested shortly after that phone call from one of the victims asking him why did you victimize me? And, you know, he admitted enough that they had grounds to arrest him, and they did.
Oh, I see. I see. I gotcha. Then over at Reason again, “Former staffers condemned cruel treatment of inmates at Texan prison for sex offenders.”
Well, this I think if I understood the article, this was about their civil commitment. So this is when they’re the therapeutic environment after having done their time and then they put them in civil commitment where they can get help. And it says the therapeutic techniques are hodgepodge. The inmates have to admit – this is just heinous – the inmates have to admit all of their offenses and share it with the group. And one of the founders of Texans against civil commitment, a former Louisville therapist, who writes under the name of Murphy, and claims to have been fired for not seeing eye to eye with management. And they have to keep a masturbation log so the therapist knows how often they’ve masturbated. And what they’re masturbating about. And she also knows whether it’s healthy, or whether it’s deviant. The men must also record whether or not they climaxed. And these logs are read in group therapy.
Oh my god. That’s kind of disgusting. Please, Teresa, tell me something useful in chat while you’re hearing us talk about this one for just another minute. They also use plethysma graphs, which I think are terrible devices. So they like measuring changes in the circumference and volume of men’s junk, Larry, men’s junk as the men watch and listen to different stimuli. I wonder a lot of times when we hear stories like this Larry how much the treatment providers are actually getting aroused out of what the treatment is. I find this to be really abhorrent to be honest with you.
I do as well. So, great state of Texas, if I were you, I would stay away from that place. But anyway, that’s gonna get more hate mail.
Yeah, with that listener that wants to move there from New Mexico. Yeah, it’s gonna be much better. Sounds like it’d be a great place to go Larry. And then finally, “Minnesota Supreme Court to hear case on restoring voting rights for convicted felons after incarceration.” Why did you put this here?
I want to do this next week. It requires more time.
My bad, my bad, my bad. I didn’t mean to even bring that one up. Alright. Well, then. So we I was doing the Who’s that Speaker? and I think I will play who this one was last weekend and I will read the winner. So here’s what we did last week.
US Army General Norman Schwarzkopf (Audio Clip) 1:08:28
As far as Saddam Hussein being a great military strategist. He is neither a strategist, nor is he schooled in the operational art, nor is he a tactician, nor is he a general, nor is he, is a soldier. Other than that, he’s a great military man, I want you to know that.
We’ve received several answers. And the first one that came in was from the winner. Nobody guessed wrong, I’m looking for people to send me some silly answers along the way says, but says hello, Andy and Larry, and a good Monday evening to you both. Ron here, once again, one of your patrons. Thank you so very much for your support. I am the guy who was able to successfully identify Donald Rumsfeld a few weeks ago on your Who’s that Speaker? segment? Well, once again, I unfortunately was not able to listen to this week’s show on the live stream this past Saturday night. However, because it was fortunate to have received the patron only link to the shows on Sunday morning, I was able to listen to it while doing my daily power walk Sunday afternoon. Yes, you heard that right. I often listen to your show while out doing my exercise. Don’t you just love modern technology that allows us to be able to do just that? You should also know I found this week’s show to be particularly helpful with a ton of useful information provided by the both of you. Thank you for that and keep up the fantastic work. It’s quite apparent that the two of you are very dedicated to the podcast and the audience that listens to and benefits from it. Once again, thank you. Okay, on to this week’s Who’s that speaker? – I didn’t want to go into that part – So okay, so having said all of that – he was telling me about his time that he served in the military – So having said all that, I may just have a slight advantage with my response and advantage that other listeners may not have had. To this day I pride myself with my effort to stay informed of world events, geopolitics, etc. Essentially, I became a bit of a news junkie, you may say, while actively participating in these military campaigns. I had CNN on the TV almost every waking minute of the day, perhaps not so much today, but definitely during the time that I served when I had real skin in the game. Okay, so this week’s speaker was US Army General Norman Schwarzkopf, aka Stormin Norman, and the audio clip where you hear him speaking is from his famed news conference, a.k.a the mother of all news conferences. On 28 February 1991, I clearly remember listening to that news conference while preparing for yet another mission that we were scheduled to fly to the Middle East, Saudi Arabia. I was stationed at Charles blah, blah, blah. And thanks for allowing me this opportunity to reminisce and share some. All the best. Awesome, so yeah, thank you that for that. I wanted to share because he provided all that extra stuff in there and the accolades of the podcast, which I can’t thank Larry enough for putting all that together. Anything before I play this week’s? You want to set this one up there?
Yes, we’re going back a long time. (Andy: To your youth.) We’re not going back that far. But we are going back about *beep* years.
Oh, man. I’ll clip that out. You can’t say that. That’ll give it away. All right. So this is this week’s Who’s that Speaker? Send your messages to firstname.lastname@example.org if you think you know who this is?
Who’s that Speaker? 1:11:41
Well, first of all, let me assert my firm belief that the only thing we have to fear is fear itself.
I didn’t want to give any clues like that, because I think this one will be fairly easy for people.
Well, it’s crappy audio. But that’s the way the technology was back in those days.
Back in your youthful times. But alright, so like I said, if you know who this may be, please send me a message at email@example.com. And the first one that makes it in, which means that patrons have a little bit of an advantage about a 36 or so hour advantage of getting the message in. We are super running short of time, Larry, so we don’t have any new patrons. But I do want to point out that we are only five people away from reaching our goal where I will play a saxophone piece for Larry. Larry has picked one and then I’m going to let the patrons also pick one. So, get in there, there’s a survey out there, I will probably like bump that so people can vote again. And like I said, we’re getting super close to reaching our goal of 100 and it’s to the moon after that Larry. But we did get a new snail mail subscriber, Hayden. What were you gonna say, Larry?
That’s exactly right. We are going to once we reach 100 it’s going to be 200 within weeks.
Yeah, that could be true. Totally could be true. So then find all the show notes and all that stuff over at registrymatters.co. Leave voicemail at 747-227-4477. firstname.lastname@example.org if you feel like you want to send me an email message. And of course, to get us to the 100 where I will play some sort of saxophone solo for you people is patreon.com/registrymatters. Larry as always I can’t thank you enough. I think you are the Master Blaster. You are Stormin’ Larry, but that doesn’t really work that well. And I can’t thank you enough and I hope you have a great weekend.
Thank you for having me.
Always my friend. Take care. Goodnight.
You’ve been listening to FYP.