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From FYP studios, east and west, transmitting across the internet. This is episode 221 of Registry Matters. Happy Saturday night to you, sir! How are you?
Awesome. Glad to be back. What are we doing tonight?
We have a bunch of things that you think that there are a lot of things that are funny, which I don’t think they’re going to be funny.
Then they will be funny, of course.
Okay, I want to make sure that I recognize that there are like 400 people in chat. And I really appreciate everyone coming along. It’s fun to have people in chat to hang out with me and make fun of me. And at one point in time Larry, people were playing jokes on me that to see if I could get you to say stuff back in the day.
Yeah, I do remember.
But yeah, so tell us what we are going to do this evening.
We’re going to be doing articles. Well, maybe, if we get to them, but we’re gonna be talking about the confirmation of Judge Jackson to the Supreme Court. And the backstory of what’s going on regarding the confirmation that people are confusing. We’re going to be trying to take that apart a little bit. And we’re going to be talking about a case from the Fifth Circuit Court of Appeals out of Texas. And what else? I think you have some other stuff that you threw in, odds and ends.
No, there’s nothing else. What I am going to do is I’m going to announce that we’re going to start doing some sort of live call-in show at some point in time. So people can call and ask whatever question they want to. It would almost be an Ask me Anything (AMA). But you can’t ask about Larry, but you can ask any question you want, and then Larry will answer it for you.
Oh, we’re gonna do live stuff where I’m actually talking to people?
Yes, maybe. But they have to be screened first to make sure that they’re not a complete BS crazy person. And that’s not that BS. There’s another BS.
There’s always gonna be that. But what do you do live calls, there are always going to be people who are going to ramble and say stuff that just really doesn’t fit with the purpose, but it happens.
Absolutely. All right. Well, then I guess we should probably just dive into our third go around, our third round- Ding, ding, ding- third round of a miss Ketanji Brown Jackson and what has transpired in the last handful of… I guess, she was confirmed, right?
Yes. 53 to 47. Three Republicans joined all 50 Democrats in the Senate.
And the three were if, I’m not mistaken, Romney, Susan Collins, and I don’t know who it was. It was Murkowski?
Murkowski from Alaska. Yes..
Okay Is there any significance to them three being the three that joined in?
It is a little surprising to me. I had hoped and expected a few Republicans, but I was expecting it to be Republicans that had a larger black population of African American population. Because my expectation would be that senators from those states would be a little more sensitive to a large segment of their population having never been represented on the Supreme Court. I was certainly wrong about that. The states that have significant African American populations, they did not. That would be North Carolina. That would be Mississippi, Texas, those states; South Carolina. They didn’t vote for her. So I was quite surprised.
I feel I’m going to ask this question in the wrong way. Those states, while they have a very significant minority population, are also like incredibly red states.
Well, they are, but they have urban centers in those states that are not so red. One of the rules of politics is- of course, there are several rules- but one of the cardinal rules is don’t alienate voters, a voting bloc. Now if they’ve written off the African American voting bloc as being something that they never cared a court, then that would explain it. But I hate to write off 25-30-35%. In Mississippi, it’s approaching 40% of the vote. When you have to win an election when you only are competing with 60% of the constituents, they can make it very difficult if there’s a contest. You see what I’m saying?
I Do. I Do. I Do. But I’m gonna guess that the voting ranks are then also kind of distorted and inverted. That the minority populations in those states do not vote to nearly the degree that the majority population votes.
That is also true. But my rule of politics is not to alienate voters if I’m running for office. Now, if you listen to the podcast, you would say I do just the opposite.
I’m keeping my mouth shut on that one Larry.
But if I’m running for office, I don’t see the need to alienate a large voting bloc. And this was an easy vote for me. But they have done, they make the senators who represent those states, they have done their own analysis. And it could be that their analysis revealed that they would be alienating the majority voting bloc that traditionally supports them. And if they did that, that would explain their votes, because they can’t explain it on qualifications.
Let me ask you one or two other questions Larry. And maybe you’re going to cover this as we go through the various clips that we have. Is there something that the Republicans are driving towards, in, like… Are they attacking her qualifications? Are they doing anything of that sort or is this some sort of like, “Hey, look over here. Here’s the Boogeyman.” But really, this is what they’re actually going after over here?
Well, I’ve been saying this, as best I can communicate it, this is all about majority control of the Senate. It’s not personal, they don’t like or dislike her, they barely know her. What they do know is that the apparatus of the party has done extensive studies about what it’ll take to move the control of the Senate back to their side of the aisle. And it’s a lot more fun being in the majority. For those that don’t understand that, that gives you the committee chair, chair positions for all the committees, it gives you control of the calendar, which is very important. And it gives you the opportunity not to have things debated that you don’t want to have debated. And we’ll hear that on one of the clips a little bit later about what would have happened had they had- or what wouldn’t have happened if they’d had control. So this is about moving control to the other side, and they have identified some talking points. And Elevated crime rates, runaway crime rates, soft on crime, are ones that’re connecting with swing voters, and that’s why they’re doing this. They don’t care about her. She’s ancient history. Now, she’s already confirmed, and barring some disaster, she’ll be seated on the Supreme Court later this summer, earliest fall. But that’s not what this is about. This is about the 2022 midterm elections in the Senate. It’s really that simple. But people are making it far too complicated.
Okay, should we dive into the clips that we have, or do you want to do something else first?
Well, I didn’t put them in any particular order. So I may have to hear the clip and then tell you why it’s there. So fire it up. I don’t know what order.
They’re going in clip 1, 2, 3, 4, 5. All right, here’s clip one. This is a Ted Cruz and Josh Hawley making some statements.
Senator Ted Cruz 07:54
significant concern has been raised by myself and others about Judge Jackson’s pattern in sentencing criminal defendants guilty of either possession or distribution of child pornography.
Senator Josh Hawley 08:07
We’re talking about eight-year-olds, and nine year olds and 11 year olds and 12 year olds. He’s got images of these, the government said added up to over 600 images, gobs of video footage of these children. But you say this does not signal a heinous or egregious child pornography. offense.
All right, there you go. Your turn.
The first speaker was Senator Ted Cruz from Texas. Second speaker was Josh Hawley, Senator from Missouri. And those clips are designed to raise the elevation of this offense. Very few people have thought about it unless your family’s connected to this, is to paint to the urban, suburban mother and family, that your children are not safe in this country with these type of judges. And I’m not going to go along the racial line. I don’t think that has anything to do with it. It’s that you’re not safe with judges that will be appointed and have been appointed by this party. That’s what those messages are. That’s what those two clips are about. So we could go into clip two.
All right, well, then clip two here we go.
Unknown Speaker 09:24
Just be clear, that pattern that Chris was talking about was nonsense. It was no different than many other federal judges and from Republicans some of whom sailed through confirmation, and of course not every Republican senator joined in that despicable behavior. In fact, three of them said they would vote to confirm judge Jackson. And for that crime, those senators were attacked by Republican Party star Congresswoman Marjorie Taylor Greene who said they were being quote, pro-pedophile. Pro-pedophile. When Greene first joined the house for over sympathies for the Q-Anon conspiracy theory, which believes that Democrats, the so called Deep State in the media are secretly part of a massive child trafficking ring. That was a big deal. She had to go back and like delete a bunch of posts. And it was something of a political problem for Republican leader Kevin McCarthy. But alas, as time has moved on, the party’s only move towards Greene and embrace Q-Anon. And that’s why they tried to make Judge Jackson hearing a referendum on whether you are not, in Marjorie Taylor Greene’s words here, pro or anti pedophile. That’s what it is.
I cannot wrap my head around the Q-Anon thing.
Well, I didn’t put it there for that purpose. I put it there for the word pedophile. That is a buzzword that their research… They’ve done extensive research. And that scares voters to think that a pedophile would be treated leniently by the justice system. So those type of comments are intended to make you very uncomfortable to vote for those people from that party. And that party being the Democrat party. That’s what that’s about. All the research you can send won’t change that. Because the goal- keep your eye on the goal- is control of the United States Senate in November, which, if they win that, and I think they likely will, that will take effect January 2nd. That’s what this was about.
Backup on what research are you talking about? Is this like recidivism statistics?
No. The research- the party, they do, the political parties, do their own research. And the Republicans are very good at it. But both parties do it. You try to figure out what will connect with voters and how to message. And these phrases that they come up with, they don’t come out of thin air. They’ve put focus groups together. Like “ the government takeover of health care.” They put together focus groups to see how that would scare people when the Affordable Care Act was being debated. And this giant government takeover of health care scared people because no one wants the government to control their health care. All they want is the government to pay for it. But not to control it. So they come up with this pedophile stuff, and your children not being safe. This is something in their focus groups they have identified by their own research, that will sway voters, and that’s why they’re doing this. So recidivism research is of no use, because it’s not driven by that at all.
Is an example of buzzword, is that the death panels that was going on back for Obamacare back in the day? I think that was probably even before that wasn’t it?
That was one of the things. But they come up with this through focused research. They spend a lot of money, the parties do to figure out how to message to sway voters. So they come up with things. The death tax is another one. you know, they create this illusion that there’s a death tax. But the death tax is really simply deferred tax that, finally, at some point your life is assessed to people who’ve had taxes deferred on capital gains. But the since it’s applied at death after it’s been deferred for your lifetime, they convinced you that you’re being taxed because you died. You’re being taxed because you were never taxed previously on those gains. But these type of things work. So folks, we live in a society where these phrases are key, and they have found one that is going to move a lot of voters this fall. They’re not gonna let go of it. They’re not.
Alright, clip three, then.
Unknown Speaker 13:50
And this was enough to flip Lindsey Graham, who a year ago, when all of these issues were present, because all the issues they’re talking about happened when she was at the trial court- And, I didn’t hear- so correct me if I’m wrong. In all of the hours of hearings, I did not hear one mention of a single thing she has done as an appeals court judge that was raised by a Republican as an objection in this proceeding.
Unknown Speaker 14:20
No, I mean, the focus was entirely on the child porn thing. They were obsessed with the child porn thing. And they really misled the public about what was going on in all of that, because their points were that she sentenced below the sentencing guidelines where you can ask essentially any federal judge the two worst sentencing guidelines are the crack versus powder-cocaine disparity, and this one. So it’s absolutely common for judges to sentence below it because it hasn’t been adapted for the Internet age. And the second thing that they do is they pretend that the government is the only entity in the room. But in a sentencing, you’ve got the government, and…
It shouldn’t have stopped there. You got the government and the defense attorney and the probation office, which I mentioned on a previous episode. Those parties also get a say, and the tax that they leveled on her, they said, because she sentenced below what the government recommended that somehow that was bad as if the other two recommendations are irrelevant.
And I brought this up to you earlier and you clarified, I read and I didn’t grab a source or anything like that, but when Josh Hawley was a prosecutor, that he was in line with what the sentences were from Miss Jackson, I think.
Yeah, I wasn’t familiar with that. But the this is all a kabuki thing about the sentencing guidelines.
Is it on the same level as a polygraph machine?
It really is. Because judges all across the political spectrum- you could go through the Trump appointments to the district court to the trial judge level, and you would say that many of them, not all of them, of course, but many of them would have imposed sentences because they look at the defendant. They listen to and they read the sentence and memorandums that are put forth by the defense attorney, and they look at the extenuating and mitigating circumstances. And they do downward departure from those guidelines all the time, because those guidelines are so harsh to begin with. And so this is not anything abnormal for a federal judge. It was only an opportunity for political purposes. And that, folks, it won’t change. They’re going to ride this horse through the election cycle.
Somebody said in chat, “Wait a minute, politicians misled the public?” Can we dig into that just for a minute? You work in this space very heavily. It is this them being totally- what’s the word? I lost the word in my head. Anyway, is this them intentionally doing a smoke and mirrors, getting you to focus on this, But really, like, are they intentionally misleading? Are they playing us because they’re smarter than us? Or what?
All of the above. They are doing those. The average person doesn’t understand the complexities of these issues. No one had thought about child porn sentencing unless you had a family member or unless you were in the criminal justice system until this was elevated the way it has been over the last several weeks. And now, since people don’t understand this issue, it sounds very frightening. So yes, they’re manipulating public opinion for political purposes. The information is out there. If everybody wanted to spend the time to uncover this, they could figure out that this is disingenuous, but most people that they’re trying to sway are busy with their lives. They’re trying to raise their family safely, their children safely. They’re trying to do things that normal families do. They don’t have the time to spend on this. And they know that people they trust- they elected to Josh Hawley, and Lindsey Graham and Ted Cruz and John Cornyn, and all these people, because they trust them. They’re not going to say, “Oh, we’ll we’re being fed a line of BS from these people.” They elected them because they trust them. So they’re telling them that this is a danger to them, and they believe it. So yes, they’re being misled.
Okay. Does this happen across the board at all federal and then all individual state elected officials? is this like par for the course? I mean, this person could live next door to you and you have barbecues with them, and now they get elected, and now they’re misleading you all the time?
I hate to say it’s that sinister. What they bank on is your lack of understanding. They don’t think that you’re gonna be able to catch the nuances of this. We’re getting ready to hand out some free money at the state level here for energy. We’re a big oil and energy producing state. And lo’ and behold, there’s going to be a series of cash payments coming in late May, early June before the fiscal year. And ours is a June 30th ending year. When that fiscal year ends, there’ll be one series of payments made and another series of payments made in August, early September, a month or so before the election. And there’s been no talk of giving any significant tax returns. We collect energy royalties. We’re the second largest producing state, and no one has talked about that, but now election cycle, magically, they’re concerned about the plight of the people that are paying these higher prices at the pump and suffering from inflation, and they’re gonna put some money in their pockets. And the average person’s gonna say, “Oh, well, this is really great. My state senator, my state rep voted for the rebates, for the for the money.” There’s a little bit of cynicism in that. There really is.
And that was the word I couldn’t remember. Cynical. My understanding, the definition is like you have a sinister plan to begin with.
Now someone like me, I will go back and say, Well, you know, this is a great thing. It’s a one- or two-time deal. But we’re going to be in an inflation cycle, in my opinion, it’s gonna last for several years, and I mean, probably as many as five years at the minimum. Because the things that are causing this inflation are not going to abate. There’s not going to magically be a gush of new energy production overnight. The other commodities, these precious metals and things that are in short supply that only certain countries have that may go offline because of this war, those things are not going to magically… you can’t start mining these things in the United States overnight. I don’t even know if we have some of these. I don’t know if we could even mine them if we wanted to. The demographics of short labor, that’s not going to change. You know, we don’t birth enough people. If we could start birthing people, that would take 18 years before they’d be adults. So we just I mean, these things are not going to change overnight. So we’re going to be in an inflation cycle. So I would ask a question like this to flush them out, say, How serious are you? We’re the second largest producer of energy in the country. And we have a very large Permanent Fund, I think it’s somewhere in the neighborhood, our combined permanent funds, our state sits somewhere over $30 billion of reserves. Now they can’t be expended because of the Constitution. There’s only a certain percentage that can be drawn from those permanent funds. But I would be asking a question of rather than if you’re serious, why don’t you put in a five year plan, or at least until inflation returns to pre pandemic levels, that you’re going to do continuous return of money to the taxpayers, as long as energy prices are high. I could design the bill for you. We’ll say we’ll put a circuit breaker and if energy stays above an average price of $70 a barrel will do this. And if it stays above an average price of $90 a barrel we’ll do this amount of return to the taxpayers, because each one of those dollars translates to a lot of revenue to us. You know, average price per barrel of oil. And you started to have that conversation, they would magically check their watch and they start looking at it, they have another appointment, they wouldn’t be able to have- I mean, it would be a deep conversation they wouldn’t want to have, because they’re really not interested in doing any long term tax relief in this state. Our tax policy is archaic. And we’re digressing. But our taxpayer tax policies are archaic. They’re anti-business in this state, and the politicians that we elect have really very little incentive to change those policies. So they’re placating people right now with this smoke and mirrors. So folks, since our state is controlled by the Democratic Party, when you get ready to bash me at the end of this episode, I just criticized the Democratic Party. I know it’s coming before this episode is done, because I’m being pretty harsh on the Republicans about what they’re doing. This was disgraceful, what they did with this very well-qualified woman.
Okay, let’s move on to clip number four. And it’s just a very, very short one.
Senator Josh Hawley 23:39
Mr. President. Mr. President, I rise today to urge the Senate to take action, to crack down on child pornography offenders, and to protect our children.
Who was that, Larry?
That would be Senator Josh Hawley again. He’s put in a proposal to reinstate mandatory sentencing for people who commit this heinous offense. We’ve got a second part of this clip as well.
All right. We’ll turn it off, turn that one on. And then here we go.
Senator Josh Hawley 24:15
The nomination of Judge Ketanji Brown Jackson to the Supreme Court has helped bring this issue front and center. Her record of leniency to child sex offenders has been much the center of her hearings and it has startled the public. A recent Rasmussen survey found that following her hearings, 56% of all respondents said that they were troubled by her record on child sex offenders. That included 64% of independents, and their right to be troubled. Her record is indeed startling. In every case involving child pornography, where she had discretion, she sentenced below the federal sentencing guidelines, below the prosecutors recommendations, and below the national averages.
That was the point I was gonna make there is that their polling. You just heard him cite to polling? Why would he have done that if that wasn’t relevant?
Fair. When someone throws stats out like that, how many people do you think consider the source? And when they hear something like Rasmussen or NPR, PRI or any of that PR- I can’t remember what it is. Public Research Institute or something, PRI. Do you think the public considers that as part of their processing of the information?
In this instance, I don’t think so, because the subject matter of children and exploitation of children. I think if you heard the word poll, and that 56% of Americans are troubled, and that 64% of independents… And that’s where the key is. They’re going for that demographic there. Because Republicans have fewer voters than Democrats. So they need those independents to sway and win. And that’s who they’re aiming this message to.
Because Rasmussen is typically pretty right-leaning.
I don’t think people are going to- I don’t make that connection there. So I doubt the average person makes that connection that “oh, this is a right-leaning poll.”
Okay. Is it time that I could bring in this Patreon comment from a listener? (Larry: Let’s do it.) Okay. So this is just from one of our Patrons and says, “I watched the hearings for Ketanji Brown Jackson confirmations to the Supreme Court of the United States. Several Republicans expressed outrage over the light sentences for viewing or possessing CP. They talked and talked and talked about how sick and disgusting the images are. So question number one, after a while, I began to think they were speaking of the person who was physically abusing and taking the photos. I guess that’s not a question. Just point number one. Point number two, with such a certain description of how sick and disgusting the images are, I have to believe that the said senators must have been viewing the images or studied them. And number three, if a person who viewed CP images deserves 50 years in prison, what would be a fair sentence for a person who committed the crimes depicted in said images?” I think that’s a fantastic question.
It absolutely is a fantastic question. That’s what these people who claim to be fiscally responsible and good stewards of the finances of the country, that’s how they disconnect their policies from the inevitable outcome from those policies. And they do this all the time. And their constituents let them slide on it, rather than saying, “Hey, I’ve voted for you, and you claim to be a fiscal conservatives that want to keep our taxes low. But yet, I’m troubled by that you want to put more and more people in prison for longer and longer periods of time? Can you square that? Because we’re spending an extraordinarily large amount of money on our prison complex, and that includes not just the prison. But the halfway houses, the probation supervision that follows, all the apparatus of our criminal justice system.” But they’re able to dodge that connection, and they’re not held accountable. If you truly are a conservative and fiscally responsible, you would want to lock people up for no longer than necessary to alter their behavior, and to protect the public. You wouldn’t do it just because. You wouldn’t say lock these people up because the public is outraged and finds their behavior reprehensible. I think we all find looking at images of children in various stages of sexual exploitation despicable. But do you need a 50-year sentence to stop it? I don’t think so. Do you need a 10-year sentence? I really don’t think so.
I really, really don’t want to step on myself here. But we’ve been doing this war on drugs for a bajillion years, and you give someone that’s just a consumer of a bajillion years, thinking that if you remove the demand, and the supply would go away, and well, I don’t think that has worked out very well. So is the thinking the same year that if you stamp out the consumer of the CP, that that would then drive away the demand to produce it?
Well, that’s the basic law of capitalism that if you decrease the demand, supply follows. I mean, when you curtail demand, very few producers of anything, goods or services, continue to produce it if there’s nobody demanding it. So I actually buy into that because I do believe that capitalism has some fundamental principles that work. If there’s no demand for drugs, all the pushers of the world will not be able to make any money.
Well, well, sure. But then like, still, we’ve been having this quote, unquote, war on drug for all of time. And I don’t think it has made a dent in anything other than having two and a half million people in prison. Probably half of them are for some kind of drug offense.
Well, I’m not sure it’s just for simple possession. I don’t know the stats on that. (Andy: That’s true. I’ll buy that.) But the fact of the matter is, without demand, there’s going to be very limited supply, because supply follows demand.
I gotcha. Yeah, it’s true, but it still doesn’t seem to be a whole lot of shortage… then they would just reduce the cost, and then more people get hooked on it. Or they give out freebies, because, again, there’s just been no shortage of it. And then you end up with the government bureaucracy of an enforcement apparatus, and they need to stay employed. So then they figure out, like, I don’t know, that gets really cynical and conspiratorial.
Well, the War on Drugs has not been terribly successful. I would agree with that. But then we have to abandon the law of economics. We have to say that supply and demand only works in certain instances. But I think it works that if demand drops, I think the supply is going to follow suit, because you can’t make any money. It seems like you’d move on to something else.
You would think, but I mean, that’s why we have fentanyl.
Well, they did move on to something else, didn’t they?
They did. They did. Is there anything else in this little block before we move on to the next block?
Folks, just understand what’s happening here. Try your best to be objective. A minority party in the Senate- it’s not really minority, it’s equally divided. But effectively, it’s a minority, because the Vice President gives the effect of having majority control. Any party that’s in a minority prefers to be in the majority. So they go about seeking how to message to achieve that. They will be messaging this particular message because 56% to 64% of the people think that this is an important thing to message. So they will be doing that. They will craft their message around achieving majority status. And there was one more clip that you were going to play from Senator Graham about what would have happened.
I’m confident that I have it, Larry, but I don’t know that I have it.
I sent it to you by text, but that’s alright. Anyway, I’ll just paraphrase what he said. Senator Graham from South Carolina said that this hearing never would have happened, that she wouldn’t have been given a hearing had they controlled the Senate. They being the Republican Party. So he’s conveying to you, if you don’t want any more judges like this on the Supreme Court, or the appeals courts in this country, or even on the district courts as trial judges, then you vote for us, and you’ll get a different type of Judge. That’s what he’s telling you. We wouldn’t have given this person hearing, and if you put us back in control for the next two years of the Biden presidency, we will not consider another appointee like this. That’s what he told you. If you vote for them with being told in advance that this is what they will do, then don’t blame me when they do what they promised you that they will do.
I did listen to that clip. One of the things that he said was that they were presented with such and such nomination, but- and it was a conservative appointment. And anyway, so but then he said, going forward, if we were in control, you would have to send us a more moderate candidate. And then also, I wanted to say, weren’t the Democrats giving them Merrick Garland, who was like the most moderate of moderates leading up to that and they wouldn’t give the guy a hearing?
That is correct. That was an opportunity to approve a moderate consensus appointment. They’re telling you that they will not confirm any Supreme Court Justices and likely Court of Appeals judges for this President. If this is your position, then go out and vote for them. And I’m not telling you one way or the other. But if you abhor what they did, then I don’t know how you in good conscience can go vote if your senator happens to be up for reelection, and 33-34 of them are up for reelection in this cycle in 2022.
Okay. We are going to probably get what we’re going to ask for, eh?
We’re gonna get it and people are going to wring their hands and they’re going to say, I don’t know why this happened. Well, it happened because you voted for it, if you do.
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You people promised one of our listeners that you would be prepared to talk about a case sent to us. The case is from the Fifth Circuit Court of Appeals out of the state of Texas named Troy Mansfield vs. Williamson County. And I have read the case, Larry. Yes, I have. And are you ready to get into this?
Well, I guess I have to be, don’t I?
I’m going to hold your feet to the fire. And yes, you will be. Can you explain what is a closed file policy?
I read that was a certain bit of trepidation because I’m not familiar with it. It’s much easier for me to explain an open file policy because that’s what most DA offices have. And I’m more familiar with those, with an open file policy. An open file policy means that the DA’s file is open to the defense. The accused’s defense attorney can review the file which includes witness statements, physical evidence. Now they don’t put an impounded vehicle in the file cabinet. But they make the physical evidence available to you.
It’s not George Jetson, huh?
Haha. Police reports, you know, any experts reports, police investigative reports. And the policy is that the file is open. Now, the Open File policy does not extend to the offices’ theories about the case, any legal research they’ve done, any internal notes that they’ve made or their own personal opinions. But according to the Court’s opinion, here’s what a closed file policy is. It enables prosecutors to withhold information until trial when the obligations of Brady, and they’re talking about Brady versus Maryland, are triggered. Alternatively, under an open file policy, prosecutors disclose relevant information to defense attorneys with only limited exceptions. District Attorneys can also decline to adopt either policy instead leaving the timing and scope of disclosure to the individual prosecutor’s discretion. That’s what the court, that’s the way they described it. So let’s go with their description. Because I have not worked with any attorney who’s advised me that the prosecutor had a closed file policy. So this is really the first I’ve heard of it.
Okay, well, then let’s move along to Troy Mansfield, who brought the suit under 42 U.S.C. § 1983 against Williamson County, Texas, alleging that the county prosecutors denied him due process secured by the 14th Amendment by lying to his counsel during plea negotiations misconduct assertedly caused by the county’s closed file policy. Specifically on June 23, 1993, a prosecutor noted in the case file that during the May 18 interview, the victim made statements contradicting her prior identification of Mansfield. Prosecutors noted that the victim would be difficult to sponsor in court. She told me she does not remember what happened. Spent two hours with this witness will be nigh impossible to sponsor her in court. At one point told me nothing happened then says a little boy might have done it, Mansfield’s son. This incredulous they allowed this person to plead despite knowing this.
Yes, they did. The prosecutors did not tell Mansfield and his counsel about the victim’s contradictory statements during plea negotiations. Instead, four days before trial, facing the trigger of the Brady deadline, the order to disclose, the prosecutor stated that the victim would be a strong witness at trial and that they had a doctor’s statement and physical evidence corroborating the victim’s identification of Mansfield. They did not have that information. The prosecutors added that the plea offer was revocable, and that Mansfield faced a sentence ranging from 99 years to life if he were convicted on all the charges of the indictment. With this Hobson’s choice, Mansfield accepted the offer of pleading guilty to a lesser charge of indecency with a child four days prior to scheduled trial, and spent 120 days in county jail and 10 years on probation and registered as a PFR.
Mansfield later learned of the prosecutor’s false statements in the 2016 state habeas proceeding vacated his conviction holding that the prosecutors violated his due process rights by lying to avoid disclosing exculpatory evidence. This is the evidence that which they were under court ordered to produce four days later. I noticed in the footnote three that one of the prosecutors later characterized the punishment recommendation as unusually light. We’ve heard that before Larry. This would be an example of a case that a person merely looking at the original charges contained in the indictment could spin to show that the judges sentence lightly, could they not?
Absolutely. This is a prime example of what happens. People, even in our advocacy movement, they’ll say, “that person got such a lenient sentence.” Well, they don’t know what was underlying that lenient sentence. So this is a perfect example. They scream about a light sentence without knowing or understanding the reasons the prosecution offered that sweetheart deal. The reason why the prosecution offered that sweetheart deal is because they knew that their case sucked. They had a witness that was going to be not credible, that she was probably going to say on the stand that she didn’t remember anything. And they’d be lucky to come out with a conviction. So they offered this quote, sweetheart deal. This is a perfect example of why sweetheart deals happen.
Larry, just as a quick side note, do you know that when you make that little snicker voice that everyone in chat has to drink? Do you know that?
No, I didn’t know that.
Okay, um, is this really a sweetheart deal if the person is actually innocent?
What you tell me is 120 days in county jail preferable to 99 years to life in a Texas prison?
I mean, if you would have said another state, Larry, besides Texas, maybe I would have gone along with you. But does this also include registering? I think the answer is yes. (Larry: Yes.) Well, then I don’t know that it- yes, you get to go watch movies and eat out, but the registry in Texas even? No, I would go for not.
So you would spend 99 years to the rest of your life in prison versus fighting your conviction on the outside and going home to your own soft, comfy bed and doing things that you’re allowed to do at home that you’re not allowed to do in prison? You would prefer that?
Shhh, I was being sarcastic. The DA in Williamson County’s name is Ken Anderson and Mansfield then pointed out Ken Anderson’s past prosecutorial misconduct. As a prosecutor, Anderson engaged in unethical conduct by suppressing exculpatory evidence during the 1987 trial of Michael Morton. Morton spent nearly 25 years in prison before his conviction was vacated after the exculpatory evidence and Anderson’s misconduct were discovered. In 2013, Anderson was convicted of criminal contempt for which he served jail time and surrendered his law license. While Anderson was not one of the three prosecutors who directly worked on the Mansfield case, half of the prosecutors in the small office did. This seems to be systemic, Larry. How can this occur in the United States of America where we pride ourselves on everyone gets treated fairly?
Well, I think you’d have to direct that question to the voters of Williamson County. What inspired them to like Mr. Anderson? My guess is that his tough on crime stance for prosecuting was very appealing to the voters. That would be my guess.
I mean, how long was what what’s his name in Arizona, Maricopa? What’s his name? I forgot his name. (Larry: Joe Arpaio.) Joe Arpaio. He was reelected for 40 years or something, wasn’t he?
Yes, for well over 30. He served a long time this year for Maricopa County.
We noted earlier that Mansfield’s criminal conviction was vacated in a state habeas proceeding. This action was intended to hold Williamson County responsible for Ken Anderson’s conduct. Do I have that right, Larry?
Yes, that’s civil action. He got relief from the criminal conviction through the habeas proceeding once the evidence that was withheld was revealed. The state habeas court set aside his conviction. But he initiated this action because he wanted a tad bit of money for what he had gone through. So he filed this under 42 U.S.C. § 1983. So you do have that correct. You’re getting good. Why do you even have me here?
We’ve been putting out feelers to find someone to replace you. We’re working on it. There’s job applications coming in. The court noted of his § 1983 claim to succeed Mansfield must show that a Williamson County police policy directly caused a constitutional violation. Mansfield argues that the closed file policy caused the prosecutors to violate his due process rights by lying about evidence they were under court order to disclose, which led to his involuntary guilty plea. Is that what he did? Or did he not?
Well, that that is exactly. It would seem- well, let me start over. He did show that they lied. But he had to do more. Unfortunately, he needed to prove that the close file policy caused them to lie. And according to the court, and they were operating under a decision called Monell v. Dep’t of Soc. Servs. For the legal gurus, that’s 436 U.S. 658, 690 (1978)case. They were under that as a guiding precedent, controlling precedent, that counties are persons within the meaning of § 1983, but they cannot be vicariously liable, that this county must be the actor. Mansfield needed to plead facts sufficient to show that the official county policy was the moving force behind his claimed constitutional violation and the policy was implemented with deliberate indifference. He wasn’t able to show that. He was not able to meet his burden of proof. He was able to show they lied. But he wasn’t able to show that there was a county policy. It was a DA’s policy, but the DA is not the county. He’s an elected official. So he had a very high standard under § 1983 to meet. This was one of those things where US liberals want to have more reform and have more successful litigation. But we’re told that that will chill law enforcement and they won’t be able to do their jobs. But this was one of those hurdles that he could not overcome. He did not show what he needed to show.
The court stated we need not here reach the issue of whether the prosecutors actions violated Brady and Mansfield’s due process rights. Even assuming that they did, Mansfield falls short of alleging either that the closed file policy was the moving force behind the due process violation or a pattern of injuries suggested that the closed file policy caused prosecutors to lie in plea negotiations. Mansfield offers only the misconduct of Anderson and another prosecutor who suppressed exculpatory evidence during the Morton trial five years before Mansfield’s indictment. They went on to say that we cannot conclude that the closed file policy caused the prosecutors to lie. Mansfield argues that the closed file policy enabled the prosecutors to lie, but the system that fails to prevent lying is not necessarily one that causes lying. Okay, Larry, you’re gonna need to explain that. They are saying that there wasn’t sufficient proof?
Yes. Because someone lies doesn’t mean that- this sounds ridiculous. But someone lying is not indicative that that’s the policy. If people go into a grocery store, and the clerk is lazy, and they don’t want to go do something for you that would require them to expend some energy, and they lied to you and say we don’t have in, our truck didn’t come in. Is that the store’s policy that you lied? No, you lied. So the court is saying that, yes. You’ve proven to us that the prosecutors lied. You had your conviction overturned, but you haven’t proven to us that it was the county’s policy to do that, to withhold evidence, to prevent you from having a fair process, to get you to convince, to plead guilty and be convicted of this heinous offense. You haven’t shown us that. You have shown us that one person who’s lost his law license misbehaved. That’s what you’ve shown us. So therefore, under § 1983, you can’t hold the county responsible for the misdeeds of one individual. That’s the way I interpreted it anyway.
I got you there. Um, so then his guilty plea was overturned in a habeas proceeding, but he does not get monetary compensation from his lawsuit.
Well, he may get compensation, but it will not be achieved using this vehicle 42 U.S.C. § 1983. It could be that the state of Texas has another option for him to seek compensation. The problem is that he only served 120 days in custody, and the rest was on probation. Most of the existing compensation schemes that I’m aware of are based on wrongful incarceration, meaning that he needs to serve some significant time. If you say, for example, you get paid $48,000 a year or $80,000, you pick your number, you divide that 120 days into how much time you spent in jail. Well, you wouldn’t come out with a very high figure, would you?
No. I saw an article. I can’t remember, maybe you sent it. I just saw go by that policing in some state, there was a investigation done. And they noted that this particular state – I want to say it was Pennsylvania, but I could be wrong- that they were pulling over people, like it was part of their policy to pull over this group of people and not another group of people and they were forced to pay like $800 million in restitution. That would be a system that is endemic in policing a particular group of people differently. And I making an analogy here that of the prosecutor lying was not the county’s policy. He’s just a jerk and lied.
Yes, my screen had actually gone dark. So let me read what I was gonna read if you don’t mind. The court said regardless, we cannot conclude that the cause file policy was the moving force that causes prosecutors to lie. Accepting that the closed file policy enables the prosecute to lie, it does not necessarily follow it causes their misconduct. The prosecutor’s underlying motivations to lie and misrepresent exculpatory evidence aside, without a direct causal link between the closed file policy and alleged constitutional violation, the demands of Monell are not met, which is the case they were looking to to control the outcome of this. So, hopefully we explained it. This is an unfortunate outcome. He’s not going to get any money or compensation from utilization of this vehicle. The Fifth Circuit Court has spoken. If he files a cert petition with the US Supreme Court, this court that we have right now is not particularly sympathetic to people who’ve been in jail, I don’t think. I think based on the climate of what we’ve had recently, would you tend to agree with me on that, particular on PFRs? Being that there’s been so much talk about people convicted of sexual offences? Do you think this Supreme Court would be happy to say, “Oh, well, yes. Sex Offender, of course, he ought to get some compensation?”
Yeah, I’m sure. Sure of it. Certain. Okay, so where do you want to go from here? Are we done with this particular? Is there any closing remarks on this particular issue that you wanted to cover?
Well, this appeared to be an almost unanimous decision. I mean, all three of the judges on the panel agreed. This is not likely to change. So for him to get compensation, you good citizens in Texas will have to pass a law through your state legislative process and get Governor Abbott, who I’m sure is very, very sympathetic to those who have been wrongfully subjected to the harsh penalties of the criminal justice system, if you could get that to his desk, I’m sure he would sign it in a heartbeat and give this man his compensation. But the courts are not going to award it to him. ou’re going to have to take an unpopular stand and you’re going to have to say that when our prosecutors misbehave, we want them to be compensated. You could do that through your legislative process.
Who introduces that kind of policy, and the voters rally around them? I don’t see that being a publicly very popular thing to absolutely stand behind.
Absolutely not. I was being tongue in cheek. This is the reason why we need what we refer to as judicial activist.
Oh, no, you don’t want them.
You would not have ever been able to pass the right to have an attorney appointed at state expense before Gideon versus Wainwright. You could not have gone into the deep south where they were struggling to fund- Well, every state struggles to fund, but particular in the south where the states were not as wealthy or, they weren’t back in the days of Gideon versus Wainwright in early 1960s. You would never have been able to convince legislative bodies to appropriate large sums of money for criminal defense until the activist Earl Warren Court said you must do this. So this is one of those things where the type of judges you put on your courts, that’s where you’ll get that type of activism. We don’t have activist courts anymore in terms of criminal justice. They have activism in other areas, which I would alienate listeners if I go into all the different things that the Roberts Court has been very activist in. But in terms of our issues, there’s no activism, and there’s not likely to be anytime soon. But that’s where that comes from. Only a suicidal elected official would propose such a thing to compensate someone who had been wrongfully convicted of a sexual offense. And it would go absolutely nowhere. And I guarantee you if it actually got through the legislature, which it wouldn’t, Governor Abbott or any governor would not be very likely to sign that.
So do both sides, Judges, have some level of judicial activism that they do and then the other side excoriates them for it?
Absolutely. It depends on what your agenda is. On the more conservative side, they’re more concerned about business interests, relaxation of corporate rule, denigration of labor rights or collective bargaining where you have to file your grievance individually. They do have an agenda. But it’s different than what the agenda that some of us would like to see, but there’s activism. Legislating from the bench doesn’t just come from the left
Or the right. Okay. Um, I do want to bring up one thing before we go is that we received an email message from a listener that was talking about going and visiting one of these civil commitment facilities, and this was in Texas. And that there is a rally happening. By the time everybody hears this, the rally I think is tomorrow, it could even be like today. But it is a Texas civil commitment program. We were talking about it on episode 194. And I’m trying to find where the group is named. And I hear that the rally was very successful. Littlefield civil commitment facility is the name, and it’s TACC. And I just want to make sure that we give a shout out to them, because this is the Patron and she’s asking us to do it. And I wanted to oblige her in doing so. There, I did it.
Well, thank you. This is an issue that is just so devastating to people, and so wrong. And I wish we could make it slightly higher on the radar as a society. I mean, our small audience, we talk about it periodically, but to incarcerate someone and disguise it as mental health treatment after they’ve paid their debt to society with no desire to provide them treatment while they’re paying their debt to society or very minimal treatment at best. And then a lot of these civil commitment facilities that are so called civil commitment facilities, there’s very little treatment taking place. They’re still treated, rather like patients, they’re treated as prisoners. If you’re a hospital patient, you’re not supposed to be treated the same as if you are a convicted individual that’s paying a penalty to society. Generally speaking, you get to wear your own clothing, you get to have access to telephone communications. You get to have a much more laid back environment. All these facilities are nothing more than prisons, converted prisons in many instances, that people are sitting in. And it’s a shame that it happens in our country. But 20 states, I think it’s 20, and the federal system allow for this specialized form of commitment that’s independent and different from the normal process by where a person is civilly committed.
Ah, all right. And are we making any progress in this space?
I mean, that email was optimistic. So I’m hoping that I’m misreading it. But I’m not seeing a lot of progress that’s being made. I know that they’ve been fighting. The Minnesota case went all the way to the Eighth Circuit. The Eighth Circuit overturned the trial judge who had found that system to be disgustingly unconstitutional. And it’s going to be one of those things where we’re gonna have to remedy it through the legislative process and some successful litigation. We’re gonna have to build better cases. Whatever was missing, we got to study all these cases and figure out what was missing that did not carry the day. Because remember, who has to carry the burden of proof?
You, being the one that’s having your rights violated, you’re the one that has to have- you have the burden of proof.
And they make these clever arguments that they are providing treatment, and that it’s their desire to get these people ready for release, but no one ever seems to get released hardly ever.
Nope. None. Unless you escape in a helicopter.
Was that from civil commitment, or was that from the incarceration prior to civil commitment?
Oh, I want to say that that was when he got moved across the street to the civil commitment facility. I thought that’s what that was. And then he came back and did another bajillion years for the escape.
I wasn’t clear on that. But yeah, this is terrible.
Well, Larry, last week, you’re ready to do Who’s that Speaker?
Let’s do it. Who did we play last week? I forgot.
You forgot already? All right. Well, this is who we played last week. Last week. I played this one.
Howard Dean 59:10
And then we’re going to Washington DC to take back to the White House. AHHH.
Was that a boon for his career, Larry?
Well, that didn’t come through. So I don’t know.
Oh, you didn’t hear it. Wait a minute. I gotta do this again. Why did you hear it? Where did that go? Hold on.
Howard Dean 59:28
And then we’re going to Washington DC to take back the White House. AHHH.
My audio source moved its location, anyway.Was that a boon for his career or negative for his career?
That was definitely a negative for his career.
Did you see him doing that? Did you see? He was like incredibly red and veins popping out of his head?
I remember that. Yes, he was definitely into it.
What was the conditions? I asked you this last wee. What were the conditions leading up to him kind of having a meltdown on stage like that?
Yeah, he was trying to secure the Democratic nomination. And I don’t remember exactly what state he was in when he made the proclamation. But he was doing very well. And he pronounced that we’re gonna go on to this state, we’re gonna go to this state, and we’re gonna win.
I think he was like, losing, like slipping. And so he was trying to get everybody rallied up and maybe some level of delusion that he was going to come back or something anyway. Did he have a political career?
Not to my recollection.
Yeah, I think he kind of just like vanished. Well, let me make sure that my button plays on this next one, because that would be really tragic if I play it, and I hear it and none of you people hear it. That would be really something. Okay, this one will play. Oh, that’s right. Because other people have heard. They already guessed it. Oh, that was Howard Dean. I’m sorry. I didn’t say who it was. Yes. Howard Dean is who that was. And so this week will be Who is that Speaker 221? If you want to send me an email message with who you think this is… and feel free to send me joke ones if you want to.
Who is that Speaker?
So I took the initiative in creating the internet.
All right, and you can’t say it in chat, or I will ban you for all of your life. If you know who that speaker was, then you can send me an email message to email@example.com. And you can tell me who you think that was.
Well, I don’t know how he did that, because I created the internet.
Did you really Larry?
Yes. I started working on it in the 1960s.
Oh, I see. I see. I see. Oh, Brenda says that’s the first one she thinks she actually knows. You too could join us in chat if you were to become a patron and listen in on the live stream, which would be fantastic if you did this. I would love it if you became one. Oh, Gosh, I already have an answer. Jeepers. That’s cheating. And, Larry, that’s all I think we have for the night. Is there anything else you want to cover? Oh, you want to tell people back on FYP Education?
Absolutely. We received our first donation through the FYP Education website. And it’s going to be the first of hundreds ad hundreds of donations to come. And your donation will be used- we’re hoping to expand our services. I’d like to have a full statute of all the registry laws, that’s going to require some research to get the 20-30 pages of the entire registration statute and a nice neat packet that I can send to people in prison. I know that there’s a wiki page and you can go to, but very few prisoners have access to that wiki page. So I’m wanting to get that resource available to people that want to know, what does the law say when I have to register? We’re sending them summaries now. But hopefully we can get that done. And that money, some of that donation money will be used to do that research. So thank you for the donation. I believe that was… who was that? Anyway, thank you, whoever it was.
Yes, I will leave it anonymous for now, because he did not specify if he wanted to be announced. But thank you very much for doing that. Longtime fan of the show.
FYPeducation.org. And then there’s a Donate button somewhere.
There is. Obviously it was found. Just saying. Larry, we record the show on Saturday nights, normally around 7pm Eastern time, because it’s the only timezone that matters. For those of you that are not in Eastern, then you should be an Eastern. And you can find show notes and things like that, you’ll find out how to get over there if you join in on Patreon, then you can get over here and listen to us record the show. Otherwise, you get to wait a couple of days after I release it so that you can listen to it after the fact. And you can find show notes over at registrymatters.co You can call us and leave a voicemail 747-227-4477. I will remind you that if you can get into chat, and sometimes I release little invites out there on the NARSOL social website, you can get into chat. And if you want to ask Larry a question, we’re going to start doing some kind of monthly program where you can do some kind of call-in kind of thing. And we’ll figure out how to advance that. Maybe even allow people to do normal phone stuff. And, again, patreon.com/registrymatters is how you can support the program and registry- I already said that one. Said that one. yeah, I think that’s everything. Is there anything you want to say before we go, Larry?
Well, I think we’ve covered it. Looking forward to, when you hit the YouTube channel, make sure you like and subscribe. We need more subscribers and more likes.
Absolutely. And also, on your favorite podcast app, if you give us a thumbs up, a vote, a review or whatever, then it will help more people find the program as well. And with all of that, Larry, I will bid you adieu and I hope you have a fantastic rest of your weekend and thanks everybody for joining us in chat and we’ll see you in a week. Thanks Larry
You’ve been listening to FYP.