Listen to RM223: Homophobic Sodomy Law in South Carolina Unconstitutional
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Well, here we are Larry recording live from FYP studios, east and west. Transmitting across the internet. This is episode 223 of Registry Matters. How are you, sir?
Awesome. Good evening. How has your day been? I understand it’s been very different from a normal Saturday.
It has been a very special day. Do you know what a Tough Mudder is? Have you ever heard this term? (Larry: No, I have not.) This is complete insanity. So, my friend says, “Hey, man, do you want to do a Tough Mudder?” I’m like, Oh my God, why? Why would you sign up to do some kind of race with obstacles and a lot of mud? But he’s good friend, supports the podcast, super good friend. So I was like, Sure. And he goes, but we’re going to do the 15k. And I don’t want to do a 15k. But whatever. 15k is like nine and change miles. How bad can it be, nine and change miles and 30 obstacles, Larry? So I will describe to you the final obstacle. This will just color the whole thing perfectly. You are already exhausted after moving for four hours. And they have these like stringy things hanging down and they are electrically charged. And these don’t tickle you, Larry, these punch you and I got just into the water. And oh, by the way, you’re in water, and then you have electricity on you. And the first one hit me, I felt like I’d gotten punched. And then I like kind of like buckled down. And the next one hit me in my ear. And I was like, you know what? I’m done. And that’s where I tapped out of that particular obstacle. And I was done, but four hours and 33,000 steps.
Wow. So you did tap out?
I mean, I didn’t tap out. I just did not do that obstacle, so to speak. I mean, I started it. There was a lot of cold water. There were a lot of over-the-tops, and there was a lot of climbing through mud. And it was pretty diabolical. So that’s how my day was.
Well, that was awesome.
Definitely, definitely awesome. Um, well, I guess then we’ll dive in. And let’s do the quick news piece first. So I’ll run this one first. Hey, Larry, did you know that? starts and stops playing an audio clip Hey, that’s the wrong one. Did you know that I had some big news personally this week?
You did have some amazing news. Let’s hear your news first. That’s what takes priority over all news.
I guess I’ll just cut to the chase. I was at lunch yesterday. And I got a phone call from the local sheriff’s office. And he said that the GBI (Georgia Bureau of Investigation) has removed me from their website. And so I’m off the registry.
Awesome. I’ve heard some chatter about it. I think there’s been more than a dozen congratulatory comments to you. And that certainly proves that a process, however flawed it may be, is preferable to having no process at all. Would you agree with that?
I think I would agree with that for sure. Whether it’s slow, whether it’s narrowly tailored, at least there was an option. Georgia wasn’t that bad in the grand scheme of things. But that’s the deal. So I’m no longer- I mean, I went to look my name up on the Georgia website and somebody else’s name showed up. Not mine.
I saw screenshot of that. It’s awesome.
I’m pleased, and Alright, so there’s enough of that. Yeah, cheers for me. Woohoo. All right. And then the next breaking news. And this one. the breaking news comes from WOLO in Columbia, South Carolina. In a settlement agreement with South Carolina Attorney General Allen Wilson, along with state law enforcement, division chief Mark Keel, those wrongly convicted of sodomy in the state of South Carolina will now be taken off the PFR registry in the Palmetto State. The settlement was reached after arguments had taken place before the court. The challenge is argued based on a 2003 ruling from the United States Supreme Court in the case of Lawrence vs Texas, that anti sodomy laws were no longer deemed constitutional. According to Allen Chaney,, the Director of Legal Advocacy for the American Civil Liberties Union, over the past two decades, South Carolina has used the PFR registry to track, shame, and ostracize people who we argued have been involved in behavior protected by the Constitution and acts that are between consenting adults. Cheney, adding in a statement released to ABC Columbia news, I am pleased that the state agreed to settle the case but discouraged that we had to sue at all. The ACLU says the move brings justice to men that have long been wrongfully classified as PFRs, and, as of the settlement, will have their cases filed under seal to protect their identities and privacy. Those who have worked to modify the law say those who have been affected will be able to have the rights restored and tarnished records restored. Within 21 days of this new order, South Carolina Law Enforcement Division will have to notify those solely convicted of buggery under South Carolina code 16-15-120 in writing to let them know they will no longer have to register as PFR offenders in the state of South Carolina. Kudos to those who have their name removed from the PFR list. Since this is a stipulated settlement, Larry, will the ACLU receive attorney’s fees in this case as the prevailing party under the provision of 42 USC section 1983? I’ve heard of this one before.
They absolutely will indeed. Actually, in paragraph eight, it states that defendant shall pay plaintiffs’ attorneys fees, a total of $31,592.30 for full resolution of plaintiffs’ fees, cost and expenses in this action
Doesn’t sound like that much money Larry.
Well, it’s not that much. It’s covering their cost for their time. So they they’re going to be made whole for having to bring this action.
Okay, and so this was the ACLU’s cost associated with the filing and the work in advance of a potential trial. I can only imagine how much work would be in a case where a full trial had been necessary. If it had gone to a full trial, they would have had a monster amount of work.
Yeah, this was a relatively straightforward issue where expert testimony would not have been necessary. The question was really whether or not South Carolina could impose the consequences of PFR registration on those who had engaged in constitutionally protected conduct as adults. It was really a matter of determining if the US Supreme Court’s ruling in Lawrence vs. Texas is binding and the state of South Carolina
And this kind of lawsuit does kind of confuse me though. I agree with the ACLU. And I’m not understanding why a lawsuit had to be filed. Could you be able to explain that to me, please?
Sure, but you’re not gonna like the explanation, because it’s political. So are you gonna let me answer with an answer you don’t like?
That’ll be fine. Go ahead.
The reason is that the registration law, as is all other laws in a state, are presumed to be constitutional. So, this was one of the enumerated offenses. So, if the attorney general of South Carolina had decided to unilaterally declare that anyone convicted of sodomy would not have to register, that AG would have been vilified. He or she would have been accused of all sorts of malfeasance. Just think back not that many years ago, when the Obama administration decided not to appeal favorable rulings from lower courts declaring that same sex marriage ban was unconstitutional. The conservatives went ballistic. And they claim he was unilaterally making law himself. That would have been a political risk to the Attorney General, South Carolina. This lawsuit provides the political cover for letting people off the PFR list. The AG now says, you know, the court was ultimately going to order it. And so I just went ahead and stipulated it.
All right, well, then, based on the stipulation, it appears that the state is required to remove all persons described in paragraph two and three above as expeditiously as possible and in no event no later than 21 days from the date of entry of this order. I mean, isn’t this similar to Michigan? Like, “We’re going to remove everybody from the registry,” but no, they don’t really do it? Do you think that they will do this one?
I think the odds are a lot greater because in Michigan, they had lost a case that they were trying to figure out a way to overturn. But in this one, they they’ve entered in what’s called a stipulation, and the Attorney General can bind the state of South Carolina. So this one, they are risking being held in contempt if they don’t do it. So, I think there’s really good odds that they’ll do it.
And on top of that, Larry, they are required within 90 days of entry of this order to provide notification to the sheriff’s office of the individuals’ county of residence for all persons described have been removed from the South Carolina PFR list and is no longer subject to the requirements of the South Carolina sex offender registry law. What would happen if a person who should have been removed by the stipulation is arrested subsequently? But arrested for what? Arrested for some sort of PFR crime, or in general?
Right. Like if they didn’t take them off the list. Like if the sheriff somehow lost the transmission, and they did not take them off of their local list, and they went out and arrested them for not doing their 90-day or their annual check-in. That’s what this is about. (Andy: Okay, okay. Yeah.) Well, let’s hope it doesn’t happen. But if it did, it certainly would not be good. Because the state having entered into a stipulation, there’s no question that they’re obligated to do it. So the person would likely have a very good cause of action, and the potential for monetary damages as well.
Well, Oh, okay. So that is pretty awesome news that all of those- Do you have any idea how many people that might impact?
I didn’t get any feedback from our South Carolina people about how many. I suspect it’s a very narrow universe, but if it saves a dozen, if it saves, whatever, I mean, it’s very important to them. But I suspect it’s a relatively small number of people.
Let me ask you another question. I swear, I remember you and I having a conversation and you’ve said something to the effect of those are not enforced anymore. Those aren’t on the books anymore. So these would be, I’m assuming, these would be reasonably old cases.
Yes, these would be old cases. Now I can’t say that for sure. But I’m presuming that once Lawrence vs. Texas was decided, that every charge of what they call it buggery in South Carolina, I would imagine the first motion a defense attorney would have filed if he or she were reasonably competent, would be that this is an unconstitutional statute. So I’m prefacing it by saying I would suspect that these would be pre-Lawrence-convictions people. But this would be one of those things where textualism would not be so good, because you would look at the law, and you would say, Well, I mean, this isn’t a numerated crime, is it not? Yes. Well, you were convicted of it. Were you not? Yes. Right. Well, it seems to me that this statute covers you. And that’s the position the state would have been taking up until now.
That word buggery is funny. If you ever watch any British television, they use the word bugger a lot and bugger means what they’re describing here for these people and this individual kind of crime. It means dude-on-dude intercourse. Can I say it that way? Is that fair?
You just cost us to be kicked out of 150 prisons.
Well, the transcription person as you’re hearing this, take that out. (You say it, I transcribe it. You know the rules, Andy!). Alright, well, then let’s move on to the next issue which is the law that you people put in from the state of Floriduh, with an emphasis on the “duh” part statute that has a section pertaining to the prosecution of sex dolls. Oh, I remember this coming out not terribly long ago. What is this all about again?
It came up in discussion yesterday of a national association of criminal defense attorney’s listserv. And it’s Florida Statute 847.011, subsection 5(b)1. And it reads as follows: “Except as provided in subparagraph 2., a person who knowingly has in his or her possession, custody, or control an obscene, childlike sex doll commits a misdemeanor of the first degree…” What is a childlike doll?
I would have to tell you, man, I have no- How do you identify? Do you know what the most popular costume for adult play is? It’s like the school girl, like a plaid skirt. And I’m not trying to promote anything. I’m not trying to say anything. But that is like the most popular costume is that outfit. So how does that- How do you then make a doll look childlike?
Well, I have no idea. The statute doesn’t define it.
All right, well, then, okay. I thought you people have always claimed that statues have been crafted in such a way as to provide a person of ordinary intelligence with specificity so he or she can conform their behavior to the requirements of the law. Is this statute not void for vagueness?
Well, that is in fact what the person’s attorney believes. He said. “The doll in evidence is a sex doll with silicone orifices. It’s it was shipped from China and marketed on the packaging written in Mandarin as a Japanese student.” I’m only reading folks. “I was wondering,” he says, “if other states have passed similar laws and whether anyone has challenged this kind of statute under void for vagueness or First Amendment grounds, or any other constitutional challenge.” The attorney said it seems to me that, quote, “Childlike, as opposed to merely child, could make the statute more vulnerable to attack. The analogy with pornography would be an adult model dressing childlike which may be legally protected by the First Amendment as opposed to a depiction of an actual child which has no protection of the First Amendment.” I can see where he’s going with that. So therein lies the problem.
It seems to be that the void for vagueness challenge would be appropriate in the absence of a statutory definition. My recollection of your rants is that the words of common usage are to be construed according to their plain and ordinary meaning, which can be ascertained by reference to a dictionary. Whether this statute gives reasonable notice to the conduct it prohibits, is, I guess a question. A sex doll depicting an 18-year-old student is legal, but one depicting a 17-year-old student is not. What would you do here?
Well, I haven’t had enough time to thoroughly, since this just was supposed to yesterday, to cogitate on this. So I’m going to plagiarize what an attorney wrote in response. The attorney says, “There is no one accepted definition for childlike. Merriam Webster defines it as ‘impressionable inexperienced, malleable, wide-eye artless, genuine,’ and about 25 other synonyms. One of the definitions that the Britannica dictionary is ‘having, or showing the pleasing qualities such as innocence that children often have.’ The Cambridge Dictionary defines the word as ‘showing good qualities that children have such as trusting people, being honest, enthusiastic.’” I don’t think a doll can do any of those foregoing things. Do you?
No. And if anybody here has children, they are not honest often. When you were a child, did you always tell the truth 100% of the time?
I think that if I asked the legislator who passed this absurd law, would they say that they meant young, but there are 80-year-olds who have childlike qualities and 12-year-olds who do not. The word does not give any sufficient notice of what they are supposed to be doing. The failure to define sex doll only compounds the problem. Some people are turned on by Barbies. Does this make them sex dolls? This can’t be constitutional.
Well, I would point out that any limitations on first amendment rights have to be justified by compelling state interests. What is the state interest here? Ending the exploitation of dolls? How is any child made safer by this law?
And to take a quick little detour, Larry, if someone was legit attracted to young people, wouldn’t this be a way for them to have an out instead of acting out in real life? And when did thought crimes become crimes?
That’s a good point. That’s what I’ve been ranting about for a long number of years. You can think about wishing that you had all the money in the vault. That’s not against the law to fantasize about having it. It’s against the law when you begin to plan and execute to remove that money from the vault and put it into your possession.
Ah, okay. Well, let’s get out of here and move on to the case from “Warshington.” Do you want to talk about “Warshington” versus Washington for a moment first?
Well, I was having fun with it last week, but the person didn’t think it was as funny as I did, because I hear it so often, and apparently in Washington, they don’t hear it very often, but I I’ve heard it for decades.
And so this “Warshington” (Washington) Supreme Court case is a state of State of Washington v. Douglas Arbogast. Police officers posted an advertisement online and posted “A mother seeking a person to teach her two children about sex.” Arbogast answered the ad, exchanged messages with undercover officers and was later arrested. At trial, Arbogast sought to present the affirmative defense of entrapment and his lack of criminal convictions as evidence that he was not predisposed to commit the charged crimes of attempted child rape. The trial court denied the jury instruction. Why?
Well, that is a good question. At the conclusion of the case, the state argued an entrapment instruction was not justified because Arbogast failed to show government inducement and lack of predisposition by preponderance of the evidence, meaning that he was supposed to show that. He had a burden to prove. And the court agreed, concluding that there was some evidence to support such lowering, but not more than normal. The court therefore denied the entrapment instruction, and precluded any evidence showing the absence of criminal record to show lack of predisposition, and that’s on page seven of the opinion. It was the state’s position that Arbogast was predisposed to have sex with a child because of the chat logs with a detective, which I did a glance through them and I didn’t pick up- I didn’t read it the same way. Now that the title of the ad suggests that. But as I read through a quick gander at the chat log, I didn’t pick up on it. It seemed like to me just opposite. He was trying to hit on the mom is what it seemed like to me.
I’m confused because according to the court In 1975, state lawmakers codified entrapment in statute, providing that in any prosecution for a crime, it is a defense that: the criminal design originated in the mind of law enforcement officials, or any person acting under their direction, and the actor was lured or induced to commit a crime which the actor had not otherwise intended to commit. Did they not induce Arbogast?
Well, that’s a bit dicey in this case. The defense of entrapment is not established by showing only that law enforcement officials merely afforded the actor an opportunity to commit a crime. And that’s where people get confused. They say, “Well, you know, they should have told me.” Well, no, they didn’t have to tell you that they were the police. But your point is, did they induce him? I’m thinking that they very well came close to doing that in this particular case. So therein lies the reason for the appeal.
And in Washington, defendants must prove entrapment by a preponderance of the evidence. Remind me, preponderance, is that more than 50 (percent)? (Larry: slightly more than 50 (percent)) Okay, other jurisdictions, including under federal law, shift the burden from the defendant to the government and require disproving entrapment beyond a reasonable doubt. I’ve heard you rant over and over about burden shifting. Isn’t this burden shifting? And isn’t it similar to what was required in Arizona? It’s the May case all over again.
Well, it very well is close is to the May case all over again, the burden shifting. And yes, you’ve actually heard me rant about burden shifting. Every aspect of charging is presumed that you’re innocent, and you have no duty to say a word to raise the defense. The government has to carry the burden, and your silence by refusing to do something should get you nowhere. But anyway, the court stated, we considered and rejected this approach in Lively, which was the name of the case that they were relying on, reasoning that Washington has long required defendants to prove affirmative defenses by the preponderance standard, because these defenses are uniquely within the defendant’s knowledge and ability to establish. For example, an affirmative defense is self-defense. When you say yes, I did kill the SOB. But my throat was about to be slashed if I didn’t pull the trigger. So you have affirm the state’s accusation that it was you who pulled the trigger, but under the circumstances, you should be not responsible. So they applied that standard here that you have to acknowledge the crime. So they’re saying this is merely another affirmative defense. Therefore, for you to utilize it, you have to acknowledge that you were soliciting these to have a hook up with these children. Anyway, they go on to say, “we saw no reason to distinguish entrapment from other defenses, and thus no reason to shift the burden from the defendant to the state.” Other than the fact the Constitution requires it. “Thus, defendants are ultimately responsible for proving they were improperly induced to commit a crime they otherwise would not have committed.” Now, they’ve changed that in this case. They’ve actually established a new precedent regarding a entrapment in the Arbogast case. So this is big news.
They stated, “The failure to instruct on entrapment was far from trivial or merely academic here. It precluded Arbogast from contextualizing the evidence with the law and prevented him from presenting the defense he wished. As we have discussed, a reasonable juror could have concluded that Arbogast was entrapped, thus the trial court’s refusal to allow an entrapment defense or to admitted evidence that Arbogast had no criminal history or inappropriate involvement with children was not harmless.” I think Arbogast had already served prison sentence. So what did the order serve as remedy?
Well, I’m a little confused. And we’re going to have a brilliant guest next week that’s going to- if you want to go ahead and tease that guest, we’re going to have someone who’s been on before that has some relationship to this issue that maybe we can get more enlightenment from her. But the Court affirmed, the Court of Appeals, which is the mid-level appeal, the Court of Appeals had said to the trial judge, you got it wrong. But I’m not sure what that ultimately will mean, because I think he’s served his time, at least his prison sentence. It would possibly put him back in a pre-convicted posture, which would give the state an opportunity to do the trial or dismiss the charges. But anyway, the conclusion reads “entrapment, like any other affirmative defense in Washington, requires defendants to present some evidence supporting the elements of the defense to justify jury instruction. Here, Arbogast made prima facie showing of entrapment pursuant to RCW 9A.16.070, that the crime originated with the Washington State Patrol, and that Arbogast was induced to commit the crime of attempted child rape, which he otherwise lacked the predisposition to commit. Evidence of such lack of criminal history was admissible under the law. The trial court erred in determining a decline to provide the requested entrapment instruction, and thus the error was not harmless. We therefore affirm the Court of Appeals, which means that that this case is finished. There’s nowhere else for them to go in Washington. But what happens next? Does he get a new trial? Do they dismiss the charges? I don’t know.
It is noteworthy an amicus brief was filed by the Washington Association of Criminal Defense Lawyers urging that they affirm the Court of Appeals. Was NARSOL involved in this?
We were not because we didn’t know about it until now.
But I thought you guys had tentacles in all corners of the United States.
Well now you’re correct. We do have a very elaborate research and writing staff out there consisting of dozens of paralegals, and probably at least a half dozen staff attorneys, but we missed this one.
So we are speaking around the margins about being in jest, though. The Supreme Court of South Carolina case, like showed up on everyone’s doorstep, like, “Hey.” How come NARSOL doesn’t know about them? And how come people don’t reach out to advocacy groups to see if there isn’t someone that could help them?
Well, they reached out to the Defense Lawyers Association. There’s just not enough knowledge of our existence, the organizations. And the advocacy is very small still. People don’t know about us. That’s one reason they don’t reach out to us. And then they’ve got this jerk that’s a gatekeeper of their legal project that’s so tough on everything. But this was one that that gatekeeper would have been very interested in. But he’s just such a tyrant when it comes to accepting cases, it’s very hard to get past him.
Okay. We’re going to take a quick little detour. NARSOL has been around for like 12 years? (Larry: Longer.) Larry? (Larry: Longer.) Longer. I’m sorry, I didn’t hear you say longer. But why don’t the million PFRs know about us, them, we?
Well, I think that a lot of the PFRs do know about us. But the question would be, the attorneys would have to know. They would have to know what our resources are. And that was part of what we tried to achieve by attending these exhibits, like at the National Association of Criminal Defense Lawyers, letting them know that we exist, that we have a limited amount of funding available to help with constitutional challenges. And that’s one of the reasons. But the knowledge is out there. If you do a Google search, you’re going to come up with NARSOL. But when you’re trying to prepare litigation of this, you’re thinking of ACLU. I mean, that’s the first thing that comes to your mind. And the ACLU says no to almost everything, although they did not say no one the case that we just discussed at the beginning of the episode.
Gotcha. Okay. Anything on that one? Anything else before we move on to the next pieces?
Well, since I mentioned the ACLU, that was an example of a case when people say how do we screen their cases? That one was one where they had almost a certainty of victory, because the US Supreme Court in Lawrence had already said that sodomy between consenting adults as any prohibition was unconstitutional. So therefore, it stands to reason you would flow from that, that you couldn’t force a person to have a lifetime collateral consequence for a conviction that was unconstitutionally obtained. So that one was going to be an easy one. So therefore, they looked at that and said, our odds of successfully resolving this issue, those odds are fairly good. And that’s the type of case that they like to take. And every organization likes to take those type of cases, because they’re expensive to go through. This one did not take nearly as long because it was relatively straightforward. If you look at the document on the stipulation, I think it’s like document number 25, 26. Normally, those cases would have well over 100, sometimes multiple hundreds of pleadings. Each time there’s something filedin the case, it goes up by one number, and this was a relatively brief case from beginning to end on the first one from South Carolina.
Okay. Well, then to move along, Larry, there’s a statement that you put in here from NACDL. Shall I read this?
Sure. Let’s go. Give us some context. What are you people reading about?
Well, I guess I’ll just read and hopefully that will become clearer from there. Says, “NACDL President Martin Sabelli issued the following statement in response to the Supreme Court’s failure to hear the case of Christopher Love versus Texas. ‘On Monday, the Supreme Court refused to hear the case of Christopher love, a black man convicted and sentenced to death in Texas by the vote of a juror who believes that nonwhite races are statistically more violent than whites.’” Oh, this is awesome. “’Six of nine justices did not find that this expression of racial hatred sufficiently undermined the integrity of the verdict to merit their review. This human and social tragedy, and others like it will continue to divide our nation until and unless we demand real diversity at every level in our state and federal courts. A diverse judiciary, with lived experience mirroring our communities would and will appreciate the profound injustice of allowing a racially prejudiced juror to judge another. A house divided cannot stand, and divided we are if our courts, despite the bill of rights, equal protection and common decency and power, the naked racial prejudice of a juror whose authority derives from the court who administered the oath to him.’” Holy crap, seriously? (Larry: Powerful.) He believes that nonwhite races are statistically more violent than whites? That’s abhorrent.
Well, but what’s more abhorrent is that that did not merit scrutiny by the highest tribunal in the country. That’s what’s even more frightening. But this is a powerful statement by the National Association of Defense Lawyers.
Good grief, man, why? And could you provide any insight as to why they would have not granted- And this would be granted cert?
Yes. But I don’t have that insight other than the fact that they’re just not interested in reviewing death cases. They are not.
Even as egregious as this would be?
It doesn’t matter. They are not interested. They have conveyed that over and over numerous times, about the potions that are being used. They said, “Well, you’re not entitled to a painless death.” I mean, they’re just not interested in reviewing the death penalty. Scalia, we don’t have that clip queued up. But since the death penalty is not unconstitutional, according to the majority on the Supreme Court, the only way you will stop this is you will have to change the statute, which we’ve done in our state. We don’t have a death penalty anymore. But quit whining to the courts, because the federal courts are not predisposed to give you any relief on the death penalty.
Are you referring to the constitutional but stupid?
No, I’m referring to where he’s actually said that the death penalty is not unconstitutional. There was no intention to preclude the imposition of the death penalty. If you don’t like it, change it by statute, but he says it’s not unconstitutional. The Constitution prevents a deprivation of life, liberty or property without due process. Theoretically, the converse would be if you’ve had due process of law, they can deprive you of life, liberty, and property.
I understand but wouldn’t that comment that nonwhite races are statistically more violent than whites, wouldn’t that garner some kind of- I don’t have the word to. Wouldn’t that call the trial into question that this person would have found anybody guilty of this just because he dislikes blacks that much?
Well, he’s one of 12. But that’s not the point. This Court has no interest in the death penalty.
I understand what you’re saying. But like, it seems like at some point in time, something would cross over that threshold. And this seems like that would be one of those things.
Not with this court. They’re not going to. They have rejected- There used to be a time when individual justices granted a stay of execution. They have dissolved every one of those stays. And that’s what they’re likely to do if- I don’t know which justice oversees the Fifth Circuit, which is the case we talked about last week. But if such a stay were to be granted, if it happened to be one of the three liberal justices, the full court would dissolve that state almost immediately. So you’re barking up the wrong tree with this Supreme Court.
Wow. I swear I think you told me earlier this week Larry that it’s Thomas that’s over the Fifth Circuit.
I didn’t look it up. I said it’d be funny if it was.
Oh, I misunderstood. Okay. So yeah, holy macaroni. That’s terrible, Larry. Okay. Wow. All right. Hey, good on us for making the Supreme Court that we have right. Good on us.
Well, that’s a whole different debate whether the Supreme Court should save us from ourselves. Scalia says no. If you don’t like the death penalty, repeal it?
I agree. But we are the ones that have made the supreme court, by proxy, of the different presidents that we have elected over time that give us the Supreme Court justices we have.
Well, I don’t think that people would have been thinking about that all through eternity when they voted for President that the Supreme Court- Well, I mean, the average person wouldn’t have thought about that until very recently.
Very true. All right. And so let’s move on. And this one came in I think Just like an hour or two, maybe a couple hours ago says, and this is from an email comment, says “Again, Larry, you said, because, as I read through the complaint, one of them has a service dog, or maybe a couple of them have service dog for a companion support. Well, that just barred them from shelters. Because the shelters already compact enough and cramped enough. Space is at a premium. So they just can’t let people have their companion animals. So they have exempted themselves.” Now, are you willing to state that you are wrong about something sometimes?
Well, no, because I was reading from the complaint. I would encourage this person to actually read the complaint. And I’m going to read that paragraph. So plaintiff number one, was named Fitzpatrick. And paragraph 20 of the complaint says Fitzpatrick is not able to stay at the local homeless shelters, even when beds are available, because of his mental health conditions. And because he has an emotional support dog that is not welcome there. So this is what Fitzpatrick’s attorney alleged and stated to the court to be a true fact. This was not what Larry said. What Larry said that the shelters are compact, and cramped, and I stand by that. I’m guessing this person may or maybe they haven’t stayed in a shelter. I have. And they’re stacked up like, cordwood in bunks. They’re very, very uncomfortable. And they are running a shelter for humans. They’re not running an animal shelter. And I probably misspoke because it said emotional support dog, it didn’t say a service animal. I don’t know anything about the laws in that state about, about what dogs are allowed and what dogs are not allowed. I only know this. If it’s cold, and the wind is howling. And you have to make a choice, I’m telling you the choice I would make. If I wanted to be warm, and be fed, and to have some degree of safety from people out on the outside that could do any number of harmful things to me, I would choose myself over the dog. That’s just my choice. But what really troubles me is that we are for this case. That was abundantly clear. We’re hoping this case helps us. The person who would hear this and think that somehow or another that we are not sympathetic, I pontificate more than anyone about our lack of services for the homeless and for the people who can’t make it in our economy. And so someone’s very unhappy that has to focus on something like that and just try to find an “I gotcha moment” here. Really?
Yeah, I don’t know what else to say about that. Larry.
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So we will just move along then to a voicemail that we received from one of our patrons. And I will try to press the right button. So I have this automatic scene-switcher thing, and I forgot to install it on my new computer. So I’m having to manually press things. When I go to the other screen, I end up with all the voice clips. So but anyway, so here’s a voicemail from a patron.
Patron Voicemail 39:06
Hey, Andy and Larry, this is a follow up about my cousin who was arrested by the FBI. I know I’ve sent in several, you know, requests at this point. But I’m wondering if, well, we’re wondering, is there like any chance at all that he’ll get probation? I mean, I know you talked about it a few months ago, but it just seems so unfair to me, you know, that there’s no chance at all he’ll get probation. Speaking of that, as anything changed, we keep hearing about criminal justice reform. And will that you know, possibly trickle down to him getting probation? Thank you and FYP.
Hilarious laugh track I take it that that is your opinion of what will happen in him getting probation.
Well, now, that’s a little tongue in cheek here now, because I know the person who’s sending in this question. But for a person to pose a question like that, I would wonder if they’re actually watching and paying any attention to the news. And after a week of confirmation hearings, with lenient sentencing and downward departures for child porn possession, and in every one of those downward departures, no one got directly remitted to probation to my recollection. They were always sent to a period of imprisonment, although shorter than what the guidance recommended. For a person to think that in this political environment right now, with every judge, potentially, under scrutiny, that they’re going to be able to give a probated sentence for a case, which that one is fairly significant in terms of the allegations that have been put forth by the feds. I mean, that is somewhat out of touch with reality to think that.
Okay, yeah. We have talked about most, I guess, most of the judges are elected.
Not in the federal system, they’re appointed for life. (Andy: Right, right. Right, right. But at the state level?) But this is in the federal system.
Oh, okay. So then they don’t necessarily have to do a whole lot of political cover for themselves in a case like this. They’re not a judge Persky is what I’m really trying to say.
Correct. But what they do have to do now, after what was done to Ketanji Brown Jackson, what they have to do now is that if they have any ambition, any trial judge, who has any ambition whatsoever to be appointed to the United States Court of Appeals for one of the appellate circuits, or if they harbor desires to serve on the US Supreme Court, can you imagine what they would do now going forward after all this brouhaha? Do you think they would say “Yeah, let me see if I can keep departing from the guidelines going down. I know that’s going to help me get an appointment to the Court of Appeals.” So the type of judge that would do that would be a judge- like, remember, judge Matsch up in Colorado that was appointed by President Nixon, and he was still a trial judge? And he’s now deceased. But he did the case that ultimately was overturned by the 10th Circuit. Someone like that who is quite up in years and who harbor no ambitions to be anything other than what they are. But anybody who’s in their 30s, 40s, and 50s, they want to be an appellate judge. They’re tired of the day-to-day stuff of trials and motions and everything that a trial judge has to deal with. How could they do a sentence of probation? They would just shoot their career right out of the window, would they not?
Likely, Yes. That sounds about right, especially after what things like Lindsay Graham said that, if, if she were in charge of this, she wouldn’t even get a hearing.
Yeah, I wish we played that clip, because people are in denial about that. And in fact, we got a comment on YouTube about something similar about Larry, I’m paraphrasing, but “why do you keep thinking back in 1996? You know, this is the present.” And so since we’re dealing with complaints tonight, the reason why I point out about 1996, is because we need to look backwards to move forward. As we look backwards, we will see the mistakes of what happened in the past. And it will help us to make better decisions going forward. And in fact, I intended to queue up a quote of President Ford making that very point. If we don’t look backwards, we’re prone to repeat the mistakes. So all the stuff that I complained about that happened in 1996 was the perfect storm coming together of the Republican takeover of Congress in 1994, having a very moderate-to-conservative Democratic president who was facing a reelection campaign against Senator Bob Dole who had sponsored the legislation that we were pontificating about. You remember the anti-terrorism and effective death penalty act? And explained why Dole- I believe he was the chief sponsor, and I explained why Clinton was not in a position to veto that. Well, if we create that same set of circumstances today, we’re likely to get the same outcome we got in 1996, which would be a plethora of bad legislation that we in 1996. That’s why I dwell on the past, to help us not make the mistakes that we made. As we go forward.
I have a quote that I’ve saved. And if you do the things that you’ve always done, then you will get the things you’ve always got. And I realized that that is pretty much trash for grammar, but it works.
It absolutely works. But I get so much criticism. They say, Larry, “Why do you always talk about the past?” And I say, “because I’m trying to prevent us from making the same mistakes in the future.”
Very good, sir. Shall we move along?
How many people are drinking right now? Because I did it.
I just told everyone to drink. So I don’t know. I have no responses yet. Um, since we covered everything else, I want to do discuss with you, Larry, that I participated in some phone calls this week for the local group. And we had one of our former guests on. We had a Brandon Thomas, the attorney that’s there in in Atlanta. And he did a whole big spiel, and then answered a whole bunch of questions. But one of the things that he said in his introduction about the people that he can help is that depending on the kind of victim, more or less around the age of the victim that you do have, that he might not be able to help you. Even if you’re a level one, even if everything else, A) he can choose to not take your case, just because that’s his prerogative. And B)- I’m going to assume that he this particular individual, because he was at the Atlanta conference in 2015- he has been doing this for a while and knows where he will and will not be effective and successful. And I’m assuming that attorneys would prefer to win. But I guess there are also attorneys, that’ll just say, “Here, pay my fee of 5000 bucks or whatever.” And they just take it and maybe do their best, but knowing that you’re going to lose and now they just pocketed five grand. So then on another call, I heard an individual and I’m not going to go into his name and call him out. But he said that he actually called Mr. Thomas and spoke to him, gave him some of the details of his case. And Mr. Thomas said, I’m sorry, I can’t help you. And in my brain, I go, he just saved you $3,500, you should be happy. But he was, well, he couldn’t help me. So I don’t like this guy. I wanted to get your feedback on this type of scenario.
Well, I’m amazed that a person would react that way. But we just talked about an amazing reaction a couple of times through this program. So maybe I shouldn’t be amazed. But I hear this complaint my entire professional career about how there are no honest attorneys out there. Well, this attorney sounds like to me that he evaluated the likelihood of success on your case and felt like that the success odds were very low and couldn’t in good conscience take your money and not be able to have reasonable hope of winning the relief that you’re seeking. You should be grateful that a person was straight with you and didn’t take your $5,000 is more typical the fee. Is his only $3,500? That’s really remarkably low. But it would be five grand or more, in most instances, I would think. But if he’s upset about that, then what I would encourage him to do is to continue to talk into attorneys until he finally gets the one that tells him what he wants to hear. Which is I’ll take your case, and I’ll take your money. But don’t be surprised when you get turned down, because I’m assuming that Brandon has his reason. Now, I would like to have a high success rate. You’re not going to have 100% success rate if you do enough of those petitions. There are going to be people who will be declined. You do everything you can to minimize that by doing your homework in advance. And I’m more persistent about what I would want to do if we had that process. I want to have my own evaluation at hand because I want to be able to counter what the state says if they throw up roadblocks. But a lot of attorneys don’t do that. They think it’s overkill. But I want to make sure that I have the best odds of winning. I want to have a conversation with the prosecutor. I want to know what they’re going to take as their position. I don’t want to be surprised at court when they get in there, and they start spewing out stuff that I had no idea they’re going to say. So the best way for me to find that out is to have a cozy chat with the prosecutor and say, “Hey, I’m going to be filing this petition, contemplating filing, what’s your office posture going to be?” And I want to know that. And if you don’t appreciate an attorney who says I’ve done these things, and in good conscience, I can’t take your case. I don’t know what to say because I would be grateful.
You actually just reminded me of another statement of someone that claims to be a paralegal and I’m not evaluating whether he is. I’m just going to take him at his word that he has at least taken paralegal classes if he’s not a full paralegal, and he was encouraging people that when it’s time for you to be eligible to file a petition to be removed, he’s like, you can absolutely file it yourself. And I was like, ding, ding, ding, ding, ding, ding. Maybe not the best of ideas. You want to speak to that one real quick?
Well, he’s absolutely correct. You may do it yourself. You’ absolutely are entitled to do it yourself. You’re absolutely entitled to represent yourself in this country, as far as I know. I can’t think of any situation except for maybe a minor where you must have an attorney. But you’re absolutely entitled to do that. I don’t advise it, because as we’ve talked about before, you can’t have the access as the petitioner than you would have as the petitioner’s attorney. You can’t have the frank conversation with your adversary. You’re not going to be able to sit down with a district attorney and say, “What do you think of me? What’s your argument going to be about me? What type of intelligence do you have on me?”
What is he going to say, though? I mean, I know that you’re allowed to do it. And so when you call the DA and ask that, is he just gonna say, Have a nice day? Or is he going to hem and haw? Are they going to give you bunk information?
Well, if you were to succeed in getting through, they’ll you that they’ll do they’re speaking in the court and that they will announce their position to the court. That’s what they’ll tell you.
Do you not have any sort of recourse to the ask the judge saying, “I’m trying to do this. I don’t have the money, or I’m competent to do it.” I mean, you’re competent to do it yourself. “And the DA will not talk to me, and I cannot adequately prepare for my case.”
You don’t have that right as a petitioner for relief. There’s nothing in the statute. We’ve read it. Is there anything that says the DA shall disclose any information- They have to disclose it at the hearing, but they don’t have to disclose it pre-hearing.
I see. That’s not disclosure. I mean, I guess that’s part of a criminal case. So this is, I guess, this is civil, is that right?
This is a civil case within a criminal posture. Yeah, they use that criminal case number. But this is a civil proceeding, so to speak. They’re not going to- I mean, go ahead and try it. And if it works, we’ll give you kudos on the podcast. We’ll have you on here, we’ll let you explain to the world how you did it, and how wonderful it was. But from 20 years of experience in a legal system, it’s very unusual for a prosecutor to talk to a defendant. And you’re not a defendant per se. But this is a quasi-criminal proceeding related to your criminal conviction. It’s going to be styled as state of Georgia versus- I bet, if you look at your own, I bet that’s what you’ll see on how the petition was set up. That’s how the order is set up. But you look at that, they’re just not going to talk to you until you get to court. And then you’re blindsided.
Right, I got you on that. No, I totally got you on that part of it. Gosh, so even you with all of the knowledge that you have of how the system works, and all that stuff- And perhaps you have relationship with the DA- but you can’t go into the DA even yourself and go, “Hey, I’m going to file this thing about me. And what do you have on me?” And he’s gonna say “kick rocks?”
I would never even contemplate doing it myself. I absolutely wouldn’t. I know the conversation that needs to be had. And it’s not going to be had. How many people are willing to hear that? When they tell them “Actually, we hate your guts. You have been a nuisance to this town for 20 years. You got off too lightly. And we would like to see you suffer. And we’re gonna do everything we can to keep you on the registry.” You’re not gonna tell the person that. You’ll tell their attorney that. You probably wouldn’t be that blunt. But you’d say “No, we’re not gonna be able to work with you on this one. This one’s a sensitive case for our office, and we’re gonna have to fight tooth and nail.” “Well, have you got information on my client?” “Yeah, we do. In fact, we’ve gotten reports over the years he’s been doing this, he’s been doing that. And when they when this hearing is called, we’re gonna raise these reports.”
Did I ever tell you a story about me going into court that my attorney sent me on a dummy mission?
Yes, you told me that, and it did not end well.
So I had a motion. This was a sentence modification so that I could see my kid because that’s one of the probation restrictions is that you can’t. And just for any listeners that haven’t heard this story, my attorney hands me the paperwork to sign the order from the judge and sends me down on the courthouse, and I get in. I knock on the door. “Who are you?” I said I’m here to have the judge sign something. They press the button. They open the door. Like, they let me in Larry. And I go down the hallway. And I go sit in the office and his secretary is there and I handed her the order. And she looks at it for a second. And like over the tops of her glasses, if you’re looking at the YouTube video, she looks at me, she goes, “Is this you?” And I said, Yes, ma’am. And I mean, I was dressed up like in khakis and a polo. I mean, I wasn’t looking like a slouch off the street. And then next thing I know, she says, “One moment, please.” And I mean, I don’t know what’s coming. The next thing I know, a bunch of big burly people come and meet me judge’s office, and they surround me like, “What are you doing in there?” I was like, “I was getting something signed.” But I don’t know if this would be remotely similar to trying to deal with the DA and represent yourself. But this was a terrible idea. Terrible, terrible, terrible.
And it’s even more terrible that your attorney didn’t tell you that. Because what the process would look like at least in that era that that happened, it may have changed after COVID, but what it would look like is normally, they used to have boxes for orders to be left to be signed. And if they need to be expedited, the runner would ask for access to the judge’s office if the judge wasn’t on the bench, and then they would go sit in the judge’s outer office and wait for the judge to sign the order. But you would present yourself as the runner, and they generally know who the runners are for the firms who have runners because they see them regularly. So you would not have been recognized as a usual runner. And so your attorney did not tell you that this is going to happen. See, I would have told you. “Hey, when you go in there, they’re not going to recognize you as a runner. So they’re going to be curious as to who you are.” But oftentimes if it’s not urgent, but you probably wanted that order yesterday, so you weren’t gonna wait for them to leave it in a box and pick it up once it was signed, and file it with the clerk. You wanted it now, correct?
I needed that day. I was flying out the next day to go visit for Thanksgiving.
Yep. So you wanted the order post haste, as they call it, and you did not have time to wait. And therefore you took- so the attorney should have told you. “Well, the only way you can get this order is if you take it to the judge’s office and wait. But I do not recommend that for you because you are the defendant. And this may not go well for you. But you do have the right to do it. But if they recognize you as a defendant, it’s not going to go well for you.” If they’d have told you that, would you have still done it?
Given the circumstances I might have been- I guess the expression these days would be YOLO. I may have done that and just gone for it and be damned the consequence. I ended up having like the Sergeant of Arms, whatever his title would be, like the courthouse police, he himself took it up there and had it signed for me, because they were like, “Sorry, dude, my bad.” Like, okay, anyway, I walked out of there with it.
well, then then you would have taken it to the clerk to file it in so it’d be valid. So you would have taken it to the clerks. (Andy: Correct.I believe that that’s how that went.) So yeah, that’s the way it works. And then once you have a copy of a filed order, then you’re good to go.
Well, Larry, sir, I believe that we have come to the conclusion of our program for the evening. Do you have any parting words?
Yes, I do. Everyone needs to be aware that we have this vast arsenal of information on the FYP Education website. What is that? FYPeducation.org Right?
That is correct. FYPeducation.org
And you are free to download transcripts. There’s an amazing search capability on that website, right? You have that same search function there where you can look for keywords and find out what we’ve talked about it. And we received a request for something from an inmate in Georgia. We just received it a couple of days ago. He wants to know about proximity restrictions. So I had our administrative assistant do the search for the most recent time proximity restrictions popped up and it was on episode 217. So he’s receiving a complimentary copy of episode 217 simply because he wrote to us. And you can do the same thing for people who have questions that you may not know the answer to. You could use that search and say, Gee, they’ve talked about it. Now you got to do a little bit of work, because it’s going to bring up- it brought up several episodes where we talked about proximity and residency restrictions. But it’s an amazing resource. It’s free. And if you want those to be sent to you from us, we can do that. We’ll do one complimentary. After that, there’ll have to be a fee associated because we’re spending research time and costs. But to show you what we can do for you at FYP education, we will send one request per person.
Fair enough. The only other thing that I will say Larry is, and I don’t know if I have this worded correctly, but I will say- and this pretty much excludes you from this expression- but the reason why we are here today with the registry that we have is because the people before us either weren’t willing, or weren’t successful at making things better for us. And I think that it is fairly common that when people do finish with their obligation of the registry, that they skip down, you never hear from again, the Earth spins too fast, they fall off. I’m not doing that. And so I am still here with Registry Matters. I’m still here for FYP. I’m still here to do the podcast. I’m still here to do all the advocacy work that I do for everyone else around the country as well. I’m still here, even though I don’t have an obligation anymore. So FYP.
Well, you know it’s sinister; it’s that greed you have for this vast amount of money that’s coming in, and it’s all motivated by selfish, capitalist greed. Just go ahead and admit that. That’s what’s causing it.
Okay, I’ll own that one. That’s totally what it is.
So, I mean, we’re bringing in at least $10,000 – $15,000 a week. And that’s what’s really motivating you. (They’re joking everybody!)
You’re totally correct. I need to talk for just one second, because we had a patron that- Oh, Josh, I wanted to say thank you, Josh. Josh increased his Patreon so that he could [designate someone to] get a transcript. And you should have received that with your vast array of staffing over at the FYP education headquarters,
We did, and we will start with this particular episode. And again, we can send back episodes. You can do it as a listener. You can go find something, they’re all their PDFd beautifully to be printed. But if you want us to do it, and there are, unfortunately, capitalism has a cost, and we will have to assess a fee for doing that. But they’re there totally free [on FYPeducation.org].
Very good. So last week on Who’s that Speaker, I played this very funny one.
Doctor Oz 1:02:06
I tell you, schools are a very appetizing opportunity. I just saw a nice piece in The Lancet arguing that the opening of schools may only cost us 2% to 3% in terms of total mortality, and you know, that’s any life is a life lost. But to get every child back into a school where they’re safely being educated, being fed, and making the most out of their lives with a theoretical risk on the back side might be a tradeoff some folks would consider.
Do you know who that is? Larry?
I do not.
That is Dr. Oz, who is a junk doctor. He peddles all kinds of pseudoscience crap. And he is running for senator. And I believe he’s endorsed by Trump. And he’s running for a state senator in- I’m sorry, federal senator- in Pennsylvania.
Well, he’ll probably win.
That terrifies me. That terrifies me. But I found that comment. I was just looking around for stuff and thought that that was really funny, because he’s making the argument of that 3%. And I think we should accept some sort of 3% mortality? Like, seriously? Can you imagine 3%? What do you think the population of children school age? 100 million? So 3%, 3 million, some rough number of 3 million kids dropping dead every year to COVID. Like anyone is going to go for that as being okay.
Well, it’s kind of absurd, but I’m gonna bring in a clip…
But, the other part of that, but if it saves just one Larry, if it just saves one, we can squash on everybody’s civil liberties. Right?
Well, I don’t think I’ve bought into that, but others have.
Yes, I understand. So, that was Dr. Oz. And I got some kind of cryptic answers from people. More people than I expected got it. But someone on YouTube, Salvatore is the one that got it and wrote it over on YouTube. Please email me so that I can find them easier. And that is email@example.com is who that will be. I suspect most people are going to get this one. This one, no clues, nothing at all. Here you go. Here is for episode 223. Email me at firstname.lastname@example.org if you know who this one is.
Who’s that Speaker? 1:04:18
I want every child in this state to feel seen, heard and supported, not marginalized and targeted because they are not straight, white, and Christian.
Do you know who that is?
I don’t know the name, but I’ve heard it. I know the context.
That is an incredibly powerful thing that’s going around right now. So if you know who that is, feel free to email me at email@example.com, and that will shut down the show, Larry, You said there was a snail mail request person? Do you have the name of the person? I assume not.
No, I don’t. But I did want to say about the senator thing. There’s a campaign in the state of Georgia between Herschel Walker and Raphael Warnock. I’ve got one from Walker saying he’s trying to be intelligent about critical race theory, which I don’t understand. So please don’t ask me to explain it. I don’t understand it. But he called it CTR. He said, “And I’m gonna tell you about this CTR.”
Okay, well now you’ve just told everyone what we’re going to actually end up with for next week’s Who’s that Speaker?
Yeah, critical race theory, because the United States doesn’t have a checkered past of doing horrible things to everyone, other than pretty much white people. So, if you say anything negative about white people, then you are being critical, therefore you can’t speak about it. I think that’s in a nutshell what it is, in my opinion.
I’m glad you explained it because I don’t understand it.
You can find all the show notes over at registrymatters.co and FYPeducation.org. You can leave voicemail at 747-227-4477. Email again is firstname.lastname@example.org. And then of course over at Patreon.com/registrymatters if you would like to support the program, listen in live and those kinds of perks. Find us everywhere on social media at Registry Matters. And I think that is all I have, sir. And I hope you have a fantastic rest of your weekend. And I will talk to you soon.
And thank you everyone and look forward to next week. There’s a very special guest coming in here.
Beautiful. Fantastic. Take care, Larry. Have a good night. Bye-bye.
You’ve been listening to FYP.