L.O.G. 190 Pass Me The 5th

Alright, good morning, Greg. Wrapping up the year. This is the last—we are, I guess, this will come out the first podcast of the year, but we're recording it on December 30th, so it's our last recording. Time travel! So everyone who's listening right now, Happy New Year! Thanks for listening and tuning in and telling your friends about the show. We do appreciate that.

We're going to start this one today with a very interesting article you sent me because someone got thrust into the spotlight of a Supreme Court case, and it's an unlikely person. So I'll recap it real quick here. But comedian Jeff Ross, if you're listening, he's a guy that does a lot of the big roast master shows. He's like the big roast guy anytime they do that. I've seen some of them, and they're hilarious.

So he, his roast of a convicted murderer, is at the center of a death penalty appeal to the Supreme Court. So what happened? We had this guy, Gabriel Hall. He was in jail in Texas awaiting trial, and he was actually eventually—so here, I'll do it from here—he was sentenced to death in 2015 for the murder of a retired professor and the man's disabled wife.

So his attorney is asking the Supreme Court to review Hall's sentence. And his petition alleges that the comedy roast, performed by Ross and featuring this guy Hall, was filmed while the inmate was awaiting trial. And then the footage was used by prosecutors to help prejudice the jury against Hall, which led to his death sentence.

So basically, they went in, he was being held at the detention center, so he's a county lockup, when Jeff Ross and Comedy Central came in, and they did a roast of these inmates. And so one of the people that was involved with it was this guy. And so what the footage contained was numerous vulgar provocations by Ross and damaging responses by Hall.

So Hall, this guy who's waiting his sentence penalty, is basically—attorneys can file all the way up to the Supreme Court at this point to kind of take a look at this case because they're saying what Hall said during this was damaging, and they used it. So his portion didn't make the show, but it was used in trial. So they used it in trial to say, "Hey, look at how he's responding to these, seeing how callous he is. He clearly has no remorse." You know, that's what it was ended up using for. I don't know all what was said on the show, but the fact that it was powerful enough to use, that the prosecutor felt they should use it during the trial in order to seek the death penalty, I think it was significant.

So that's the basics of the case here, Greg. So I want to kind of throw to you to see, to explain, because we've had other conversations about this with, you know, different artists, different hip-hop artists or rappers, bragging about crimes they committed in a song or in a video, and then that can be used at trial. There's been other talking where people talk about different things, and then it's then used at trial against them.

So, part of it is a First Amendment issue. In the case of Hall, he was already detained and in jail, so it's a little bit different. But what his attorneys were saying is, "He shouldn't have been allowed to talk about this. We didn't get to speak to him about him going on the show. Therefore, his rights were infringed." So that's the legal battle of this case, and I'm sure we'll talk about a few others, but I wanted to throw to you first in case I missed anything.

Well, let's go back to this. Let's go back to the timeline. First of all, let's give a shout-out because I know Jeff Ross watches our show, as Lisa Lampanelli and Sarah [Silverman] and Brett Butler, and Gilbert Gottfried used to watch the show, and so he died. But the idea here is a very convoluted case, but the arguments are beautiful. So if you love the law, look this case up.

I'll put all the links in the episode. Yeah, please, anything we talk about.

So Gabriel was at Texas A&M, 18 years old, goes on the wild, kills the professor and his disabled wife, as you mentioned. And that's what created a sentence enhancement because of the brutality of the crime and the fact that she was disabled. Do you see what I'm saying? Each of those multipliers add up there.

But here's the thing. He confessed, and when he confessed, he was sentenced to the death penalty. So the idea then is that there's different trial procedures that go along to safeguard you no matter whether you confess or not. Like, for example, a confession without evidence is useless. You can't just confess to a crime and have no evidence that you were, in fact, the person that did it, right? So, and we'll go into those as we go along. We don't want to be a boring episode, but I will tell you this:

So now he's ready for his sentencing phase. And what happens between the trial and the sentencing is that Jeff Ross and his crew go around to the prison, and they interviewed a bunch of people, Brian. They didn't just interview him. You know the case, but the idea is that he makes inculpatory statements that would, in anybody's eyes, in any jury's eyes, would prejudice the jury to believe that his confession is true and he did, in fact, brutally murder these people.

Now you're saying, "Yeah, but he already confessed." Yeah, I got it. But sentencing is a [expletive] because he could come up with, "Hey, this guy had been molesting me, and I was out of my right mind," and all those other things. Yeah, so he could have had a bunch of arguments, but now guess what? I don't have an impartial jury anymore because the jury literally sees from my lips me making the statement that, "Yeah, I did this this horrible thing."

But here's the thing, too, is sometimes the confession is used as a plea agreement to not get the death penalty, or, you know, for sentencing purposes, like, "Look, we know you did it, here's what we're offering you so we don't have to go through a trial," right? But obviously, he confessed, and then they still want to send, "We're going to kill you, buddy."

So here's the thing: lawyers are right to challenge because under the Sixth Amendment, you have a guaranteed right to a public trial, right to trial without delay, right to an attorney, and adequate legal counsel. And most importantly, in this, the Sixth Amendment says the right to an impartial jury. So no matter what jury they line up, the deck is stacked against them, and that's the argument, and I love it, and I think they're going to win on that.

Here's what they can't win on: they can't win on Gabriel's stupidity while awaiting sentencing, thinking, "This doesn't apply to me. I'll say whatever I want." And the next part of that is, you understand everything that you say is up for public recourse. So yes, if you say something, you say, "Well, I have the First Amendment right." Yeah, absolutely, the right to your own thoughts and to speak your own opinions and read and write what you want, but that doesn't mean that you're free from somebody coming after you for those statements, right?

So here, you can't use the defendant's stupidity in between the trial, and you can't use it that Jeff Ross and his production crew were acting as an agent of the police. You get what I'm trying to say, Brian? That's just unrealistic.

It's not like, I see what you're saying. And I would say, it's not like the county jail was hosting some event where they sat around and talked about something, or where they had—no, this was an outside agency. This was a film production crew. And for this, you typically have to have—one, if you're going to be on it, you have to personally sign a whole bunch of different waivers. And obviously, this is a huge thing where the detention facility has to get all kinds of different approval to have something like this go on. You know, you see stuff like this every once in a while in the jail, where, you know, it's a concert or a show or they do something like that that's happened countless times throughout history, right?

But you still have, you have to sign waivers and say, "This, you can use the footage for whatever you want. I'm doing this willingly." All of that stuff has to be in there as well. So, like you said, they can't sit here and say, "Oh, this was staged to get these inmates to say something, hidden microphones."

So for our history guys, for the people that love the law that watch our show, and the people that are history buffs, look up Altamont, the murder at Altamont while the Rolling Stones are literally playing "Gimme Shelter" on stage. The Hell's Angels are in front, and there's a homicide that occurs right in front, and you can see the whole thing.

Well, there's no way, there's no way you're going to tell me that everybody had set up the concert to videotape surreptitiously the homicide to get this guy in trouble. No, it just happened that the cameras were rolling, and Ross—there's no way that Ross would have said, "Hey, now I'm going to," Jeff Ross or his production company, "Hey, I'm going to sell this back to the prosecutors," because this is the smoking gun. No, Gabriel had already confessed to the crimes.

But prejudicing a jury means that the jury won't be able to take their foot off the gas pedal. So what if, again, if we're going to turn this into a fun quiz, what amendments apply? So you got the First, you got the Fourth, you got the Fifth, and you got the Sixth. Why do you have that? Six is the right to an impartial trial. That's what his attorneys are going to go under. And I think if it gets to the U.S. Supreme Court, the Supreme Court is going to look at it and say, "Yes, they were sufficiently prejudiced. Do it over." That's what I think is going to happen, even though he's a [expletive] idiot, Brian.

Yeah.

I think the Supreme Court is going to say, "Hey, because the prison's a federal institution, they should have known better." Do you get what I'm trying to say? And even though the protections were there and he signed up for it, that adequate protection includes the right to an impartial jury and that the jury would be sufficiently prejudiced.

A jury can be prejudiced by a statement, by a photo. For example, you remember—and I don't remember the caper—but there was Malcolm X at the beginning of the film Malcolm X, they've got the beating of Rodney King by, oh my God, you know what I'm saying, those officers. I can't remember, Stacey Koon and all those guys, right? So what they said is that they showed that during the early stages of either the Reginald Denny trial or the O.J. Simpson trial—I don't remember the facts, and it doesn't matter for my example—but what happened is they had to throw it out because it so prejudiced the jury that while they were on their free time, the state, while they were at the motel eating lunch that's paid for by the state, happened to show that movie, and nobody thought that it was wrong that here this companion case was at the beginning of it that showed police misconduct. Do you see what I mean?

So prejudicing a jury, Brian, can have, it can be a rainy, gloomy day, and the person goes, "Hey, I would not have been convicted had it been for the weather." And it's up to the courts to pick that up. I love it. I think this guy's a [expletive] idiot for ever agreeing to this, but you got to understand that he wasn't fully thinking out the spirals of his actions or his statements.

No, and it gets back to part of the reason why we're discussing this case is that there's a, there's a lot of misunderstanding, definitely around most of the Bill of Rights, but specifically freedom of speech and the First Amendment, which is, then people say, "Look, yes, you're free from the government limiting your rights, but you're not free from the consequences of what you said, your statements."

Exactly.

I'm always in the, let people say whatever they want. Free speech should be, it should be, everything is okay until an extreme example, but that doesn't mean you're not going to suffer any consequences for what you say. So I think that this is a good example of it. Now, this one is separate. This one is different because it involves someone who is incarcerated, therefore, they're under the responsibility of the state. So that changes things a little bit because they don't have as free will in a sense. They're incarcerated for a reason, for their trial or for being convicted of something. But either way, you're unintentionally brought in.

Well, it is what I'm trying to say.

Versus just a free person saying something or doing something or bragging about something that they did openly. That's a little bit different. But I see what you're saying on this case, and it's an interesting one, too. Any time Jeff Ross has something to do with a Supreme Court case, I mean, this is what I love is like, the truth being stranger than fiction. Like, you have, I love the Supreme Court, though, yeah, because the Supreme Court looked at this and said, "This is the perfect case to make a decision, to hand down a decision that's going to have repercussions for a good long time." You can imagine the spirals coming out of this at the prison. And again, Johnny Cash played in it, never intended to be a bad thing.

But let's, let's talk, before we get into the weeds, let's talk about why it's so important with like a companion case. Okay, so you and I talked a lot about who I always think played baseball, but he's actually a football player, Aaron Hernandez. Now, folks, this is how stupid I am. I know the law, I know the characters, I know the players, I know the evidence, I know the case in chief, I know the attorneys. But when it came to me sending it to Brian, I said, "Yeah, you know the baseball player."

Yeah. Hey, you're a baseball player. And I'm sitting here racking my brain like, then I'm getting, I'm like, what the [expletive] is he talking about? Baseball player. And like, this case sounds familiar, but no, I don't know. I'm like, oh, Aaron Hernandez, the football player. Greg, years ago when we—

And I'm so stupid. Years ago when we talked about this, this was one where there was an amazing amount of incidents, okay? And an amazing amount of evidence within each of those incidents, and Aaron Hernandez's own statements and actions that made it clear to anybody that was watching that Aaron Hernandez was in trouble and he was a murderer and engaged routinely in threatening behavior with guns.

And that was before the one he was actually convicted of and arrested for.

Exactly. Yeah, exactly. And Brian, you and I argue about this, and when I say argue, I mean in a good-spirited discussion about it, because there's a lot of people that come off the top rope and say, "You don't understand Aaron Hernandez's background." Yeah, I fully do, but we can't go back to his lack of ejaculation and masturbation at 12. It caused a multiple murder. Stop. Okay.

Second part, what do they come off, Brian? They're coming off with a traumatic brain injury.

Which he has, yeah. But he not only had it, but he had it in spades. He had, yeah, they did the autopsy on him when they test for the CTE (Chronic Traumatic Encephalopathy), the big one of that for brain injuries, and it was like one of the worst they've ever seen. But that doesn't excuse his behavior. I mean, I'm certain it likely exacerbated his behavior that he already had. Of course, that certainly did not, didn't exactly help him out in life.

You just illustrated, you just shined the light on where the prosecution went wrong in the case. Look, prosecution may have nine different capers to look at, but there's a lot of things. Can I get a witness? Is it a hostile witness? Do I have enough evidence to go to trial? Am I going to win a bench or a jury trial? So there's many things, and people don't understand it. So it's taken too long. Like the Oregon caper, and I'm reading on Twitter that the cops are idiots and that there's a lot of evidence that a professor around the block was hiding in them. Wait for the investigation.

Yeah, no, no, no, let's not wait. I have no experience.

Listen to me. So with Hernandez, this is where I think the prosecution went wrong. Hernandez openly spoke and challenged people that he was not only the shooter, but a good shooter. And a number of the capers, there was a number of witnesses that were intimidated to say something. One of the witnesses got shot in the head and ended up becoming Hernandez's friend because he bought him off.

And this is from an initial shooting again, years prior to the one he was convicted for. Yes. Yeah, yes, his behavior before while still a Patriot in many instances, but before the trial that he was convicted of.

So the prosecutors sit around, and they go, "Look, his own statements are damaging, so let's just keep putting his own statements and videotapes of him acting out and showing and laughing at the jury. Let's put her on." And, Brian, that would have worked if it was [expletive] TMZ. Do you hear what I'm trying to say? If we were all standing around watching The Hollywood Reporter, what happened is juries looked, and juries go, "You know, that's pretty good, but you didn't show us enough for the evidence, connect the evidence." And the guy's a star, and you kind of like him, and the guy had a rough life. And so what happens is, is they had a really, really hard time convicting had it not been had Aaron Hernandez shut up and invoked the Fifth and had an attorney, he would have never had any of the problems because then it would have been a he-said-she-said situation.

But the reason it's close is there's a couple of capers. This one, the Jeff Ross one, where the guy couldn't shut up. Nancy Brophy (rather, Nancy Brody), the Irish Mirror article, and Nancy Brophy writes the book How to Murder Your Husband, and guess what? Her husband dies, and everybody looks at it and goes, "Okay." So one of the key capers in there, and look it up, folks, truth is always stranger than fiction. What she did is she shot with a specific pistol that they knew that was the pistol, but the forensics didn't match when they did the land and grooves and the twist because she had changed the barrel. And these are all elements that she has in her stories, in her handwritten notes.

And guess what, Brian? This thing we're talking on is called the computer. So when you search, you know, Taiwanese, uh, she-boy anal bead sale, it's going to come up even though you think that you reduce that by clearing your computer browser. So when she went in and got the barrel land twist group, Brian, that's compelling evidence. So you can do something or say something that's not in your best interest. And what does everybody think? "I can plead the Fifth. I don't have to address it." No, you have to address every one of those consequences, right?

Yeah, no, and that's a good one. Again, I'll put that link in the episode details of the woman who writes this essay or this whole story about, you know, how to get away with, trying to get away with murder and killing someone, and then a few years later, her husband in her seventies is in prison. No, yeah, I mean, her husband's murdered. So, yeah, that was a, that was a, again, people, well, but this goes back to everything that we talk about. So we're talking about mostly with these cases so far from the legal standpoint. This is why we say most people want their say.

Like people want to talk. Exactly.

Let them. Let them, let them. Because I'm a big fan of, go, you've seen me do it before, go on. When someone, you're an attorney and they just keep going, and then you get, but even in a discussion where someone's upset, don't you say a comment, and I'll go, "Go on. Keep going with that." And then they've got to come up with a statement now other than just being angry. Now they keep going, and then you get to the point of what they're really upset about, too, which is good. And so people want to have it.

You can't be snarky. You see, Brian, one of your techniques is that you're always genuine when you do that. One, you add a liberal dose of humor and self-deprecation at the beginning to show them, "Hey, look, we all make mistakes. We're all fragile little egos, but go on." And what happens is then the person feels like it's a safe little nest, and they say everything. So that's a great point to why if Miss Brophy thought the First Amendment was going to protect her, because you have the right to your own thoughts, speak your own opinions, read and write what you want, you do, but that doesn't mean it can't be used against you.

So the Fourth talks about seizures, and people get seizures wrong. If you're not free to go, Brian, it's a seizure. So if I have custody, you're not free to go, and I'm interrogating you, guess what? Those rules apply. And now you've got the Fourth and you've got the Fifth, and those statements that you make could impact the Sixth, and if you're already in custody, then that's the Eighth. There's so much [expletive] in the law there that is set there to protect every word that comes out of your mouth, every drawing, every painting, that's a good idea that you've had. But guess what people do, Brian? They order off the menu, where they don't even say, "Let me see the menu." Hernandez never thought that he was going to face a jury trial with his actions.

Well, then where he didn't on the street, Brian.

No, no, and then that's things.

So one of the things we always talk about is, you know, first people first, I learned my boundaries, then I test myself and I push my boundaries, but that's a normal human development. But when you never get consequences like Hernandez, like, he throughout life, he, there's a great documentary all about that on Netflix, and he did not suffer a lot of consequences because he was so good at football, and his magic, they were all like, so he had people there to try and help him and mentor them and coach him. He was also a master manipulator. People that loved him, [he was a] very manipulative person. So all the way to the point where to get on the Patriots, because you know, when you're someone like that and you're coming on, anyone coming onto a professional organization like the New England Patriots or any football team, they spend a lot, lot of money on people that are retired, usually law enforcement, federal law enforcement, some type of investigator, attorneys, everything to go look into people's past and find out what's going on in their life and see what's happening and see. So they knew or should have known a whole bunch of this stuff. But what happens is he was a really manipulative guy, and so Bill Belichick even was like, "Man, I want to give this kid a chance. Look, he's like, he's a,"

Yeah, he's a true. We tug at the heartstrings. He grew up in a rough neighborhood, he had a rough life, his old man used to beat the crap out of him. All that stuff. And so when people go, "Damn, I want to give this guy a chance," when the facts of how he's going to behave are staring right at him, he shot a guy and then co-opted the guy to become his friend. So he did not suffer any consequences for his actions, and they dreamed about it. I mean, that's, that's on, that's such a high level of manipulation that not a lot of people can pull that off, but that comes from the street.

Yes, exactly. You're exactly right.

The same thing when you're on the street.

Yeah, you get what I'm saying. Because instincts prove true or false on the street. Well, the consequences virtually immediately, and the environment is, is so the learning that takes place is so profound and so immediate and so lost because when you grow up like that, you're constantly in a survival situation, so it is survival even at home, even with a mom or dad, your brain, your limbic system is constantly kicking and learning, "Oh, I got to manipulate the situation so I don't get my [expletive] beat," or, "How did I handle it last time?" Right?

Yeah. So, and if I handle it with violence, what do you think I'm likely to choose? So I want to attack you here for a second, and I'm using the word attack because people listen to our words and sometimes watch us saying those words and don't get it a hundred percent. You use the word manipulate over and over and over. Is it okay to manipulate your environment? Is it okay to manipulate another person? And when I do use that, I literally mean it in sort of a clinical sense. As a child, a child gets to a certain age and learns to manipulate its toys, right? Like that's what I mean, manipulate its environment, move things around. To win at a Rubik's Cube, you would have to manipulate the cube.

It doesn't matter. Like when I want to go to a certain spot for dinner, and I got to get my wife on board, I'll start dropping hints early on during the day. Exactly. But I'm not doing it, it doesn't, it doesn't, I don't see that word, it does not have a negative connotation for me. So the intent is what matters. And if the intent is for like, people sometimes use the term, well, first of all, everybody lies, we all know that. Second of all, somebody uses the term a white lie. Okay, well, this would be an instance of a white lie where you're manipulating an environment, or you're like, for example, if I was going to do an interview, I would manipulate the interview room to give me the best results.

Yeah, you get what I'm trying to say. So I'm planning on likely outcomes, but sometimes I have to do something, and that's manipulation. But people sometimes when we talk like that, they come back and they go, "So you're openly manipulate?" Yeah, exactly. Everyone, but my intent is not evil. It's not to get into your pants or to steal your wallet or to marry your daughter. What I'm doing is I'm trying to make sure that I understand fully the consequences of my statements and actions in the context so I can get the best result.

And listen, that's where they come off with the rappers, Brian. Rappers write songs, and sometimes in the songs, they lay out what they did. "Yeah, I shot you [expletive] on Eighth Avenue because of this." Okay. Now there's other rappers—first of all, rap is as old as music. So if we go back to 1950s, I guarantee we can find examples of rapping in a song, and somebody right now is ahead of us in checking it out and goes, "Oh, you know, Rudolph the Red-Nosed Reindeer with Tex Ritter or whatever."

The idea is when you are saying that, almost always you're speaking from experience. A country-western song, a rap song, a street song, yeah, but sometimes just like in your journal notes or in a poem, facts, artifacts, and evidence—that's where facts, you know, fact-based data comes from. And then people say, "Well, you can't use that against me because I'm just emoting, I'm just sharing an emotion." No, you're wrong again. The idea is if somebody can tie a statement to a time and a place, and it becomes a factor in determining your guilt or innocence, it may be an alibi. "Remember that night at Denny's?" And somebody looks up, it's the song lyric, "Yeah, somebody looks up and goes, 'Hey, if he was at Denny's, he couldn't kill the snowplow driver.'"

So you've got just as much likelihood that you're going to get freed by your words than you're going to get arrested by your words. Now, we're not talking about arresting somebody for saying, "[expletive] the government." And we're not saying that when somebody says, "Yeah, I killed every"—like Eminem, a great thing, "I do everything that I say." What is that? "The Real Slim Shady," remember that? Yeah, yeah. "And I'm going into the place and yeah, I killed them and I killed Dre too. I got him locked in my basement." Okay. You know, that's [expletive], and he knew it was [expletive]. Yes, and he was telling people it was [expletive]. But what happened there, Brian, is somebody goes, "Oh, no, it's revelatory. This is inculpatory. Statements are evidence that he did something." Not so fast. You have the right to say whatever you want to say, write, paint, do that. You can, that my favorite is the artist that stuck all the different color paints up his [expletive] and then [expletive] onto a canvas and sold them for hundreds of thousands of dollars.

Oh, man. Whatever. You're in the wrong line of work. You definitely are.

But the idea, I could do that right now. That's not going to take long at all. You know, this all dates back and there's precedent in every one of these cases. So I would say with the rapper's case, you want to learn more about that, and again, look, if you're a cop and you're listening in our show, we're giving you gems here that you can use, on-duty and off-duty role. They illustrate other capers.

Social media with all those. And that's constantly, and especially now today because of social media, everyone's still talking crap. Just how everyone knows it's now easier, too, and you have a larger audience. And people admit to that stuff all the time. I mean, that stuff has changed over the last ten years, used in so many cases, it's like, "Well, here in this video where you clearly said, yeah, I shot at you, Emma, for this, that, another." It's like, yeah, people are that stupid sometimes. So, yeah, I mean, you really will, which is why you kind of let people, let people have their say. Yeah, they'll, they'll let you know who they really are.

It's actually why I love, I don't post a lot and spend a lot of time on it, but I love being on Twitter and just reading through comments and what people say because you can only, you can't hide who you truly are. It's going to come out eventually. And that true person of who you really are and feel will eventually come out. Unless you have a team that does the, some of these people that are just real famous or whatever and they have a marketing person that does all their social media for them, but that's different because it's going to be clinical, it's going to be direct, it's going to be for the purposes of making more money usually. And so, but when it's an individual on there, they're going to show you who they are. So you just, it's the greatest tool ever because you can go through their timeline and look.

And when it comes to what they say, we're always, we're, we're behaviorists, right? We focus on behavior is more important than what someone says. But the best, and just to even talk about with the Aaron Hernandez case, the best predictor of future behavior is past behavior. Like, what they've done and gotten away with before in the past is what someone is always likely to do in the future.

You gave such, look, that becomes your fingerprint. So your fingerprint is going to be evident. Look, you know me very well. You know me better than everybody but Shelly, I'm imagining. So you know my antics with cosplay and how much I love furry series. So no matter what facade I try to hide behind, my fingerprint, my thumbprint is going to come true, through rather. So no matter what my external maskings are, how I write and where, and you're going to go, "Oh, yeah." But many people, that now, and you can always trace it back. All you have to do is look at the voluminous amount of evidence, sort through it, and go, "Here's the pattern." That's why we do human behavior pattern recognition. And what am I talking about now? The analysis portion.

So if we take a look at how society can manipulate it, look at the caper with Hillary Clinton. Hillary Clinton says that they threw a grenade out, and Hillary Clinton said it was a willful misrepresentation of the truth. She walked it back and went on. What does that mean, right? But let's go one step further. Brian Williams is actually in an air armada flying out with a bunch of Chinooks, and the Chinook, and a lot of people, who takes a hit with the RPG. And he recounts it almost word for word, but what does he add? It was his Chinook, right? It was his CH-46 or seven that was, yeah, yeah. And that wasn't true. What did they do, Brian? He's still not back on the air. You see what I'm trying to say?

Okay, then I'm wrong, but think about how long that took. Yeah, right?

No, no, and people would say it was because of credibility. Now, you know what it is? It's your street cred. Had Aaron Hernandez said that, people would have taken it for a living. Look, Brian, I've been in audiences of a thousand people speaking and talking about Iran instead of Iraq because I'm on a rant, and I'm a dehydrated walking around.

Yeah, we were just talking about everybody. But it doesn't matter because what I'm trying to say is this is the point I'm making, not where I was during that day. Well, yeah, and that's also with the context that we were talking about, you know, you're telling a story, and then that's it. There are certain details that don't matter. But if you were never under sniper fire, you can't tell a story that, you're right. Exactly. If it wasn't again, if it wasn't your helo that got shot at, you can't say it was going to be, "I got shot at." All that, there's, there's one guy that just got elected right now, and apparently no one did any diligence on him as a politician, that literally just lied about everything. Said, "Well, it sort of feels like you said you were Jewish." "No, no, no, like my grandma was part Jewish a long time ago, so I said I was Jewish."

And, you know, people do that stuff. But, you know, you have to determine obviously what the intent is, what the context, but more importantly, what you're talking about is what you say can and will be used against you. You still have the right to say all of it.

Exactly.

But this goes back into just because, this gets into the First Amendment a lot, too, which there's definitely a lot of confusion about all of the amendments from what I see people say things, even elected officials, of what you can and can't say, and now they're saying that that transfers over to social media, and it's kind of a gray area because things are different when a publisher of a newspaper prints something that's false. You can sue them there. You have recourse, you can sue them. You do that.

Right. But if I, exactly.

Post something on Twitter that's complete BS, I can't really be held accountable. Well, because Twitter isn't a publisher, it's just a platform. And it's just so there's that, that's an interesting area. I think it's less interesting than people are making it out, which I think it's a little bit simpler than what people are trying to make it out to, but everyone's trying to carve it out to what they think, and everyone's for free speech except if it's, except it's when something they don't like being said.

And so, that's where I want to go because our friend, who we knew, and we ate meals with, and we knew he was part of him was absolutely [expletive] crazy, and part of him was absolute genius. And we had him on the show to talk his caper, and we got bounced off, and we lost good friends over it. Okay. So now put that in your column. How do you, how do you do that? Because all we were doing is reporting both sides of the same issue. We were, it was just trying to see what he was going to say, and he had his script, and there was no online.

And people want to say, "Oh, you gave someone a voice." No, let people talk.

Exactly. Exactly. But they can still, yeah, certain friends of ours still don't understand that move now.

Let's talk about Jews, our second favorite Jew after Jesus is Karmi. So Karmi SSCNA (Synagogue Safety Council of North America). Folks, look it up. The Synagogue Safety Council of North America. Some great practical advice, especially if you're a Jew, and even more so if you're a Hasidic Jew. Why am I bringing that up, Brian? There are people using hate speech against Jews on those same mediums. But guess what? It is protected. You can say whatever you want unless what? Until it becomes a credible threat in mentioning that you're trying to do it or you're going to try to get somebody else to do it.

Yeah, there's no such thing. There's no such thing as hate speech that's not, there's no, I mean, meaning illegally. Like, there hate speech, if you think what it is, is protected under the First Amendment. Now, what you're talking about, too, is, you know, if it's a credible threat, but that has to be precisely based on, or a terroristic threat, or what? Yes, so that's different.

And then incitement, which people don't get and constantly get wrong, and each of those include hate speech. Okay, but hate speech isn't the proximate cause of any of that. It's all of those ancillary factors where you demonstrate intent, and you have a reasonableness standard that says, "I think he might carry it out." Yes. That's how people get a search warrant.

Yes. And then that's what it gets into. That's why we talk about intent so much. Like, you can say any of those things, and you can say all kinds of stuff that a lot of people won't like, and been saying that the example of fire in a crowded theater because everyone takes that, use it, it's a horrible example, but exactly. So, listen, when people talk about the First Amendment, they forget that it's not just freedom of speech or the press. It's a right of people to assemble and petition the government for redress of grievances.

Yep.

But there's a word they skip over all the time, and journals do it all the time. That's peaceably doing something.

Yeah, I know.

So you have the right, and there's a comma and an "and" to petition the government for redress of grievances. So not all assemblies are allowed under the First Amendment, and certainly no assembly that's not peaceable is allowed. That's clear. And it's going to be protected over and over and over.

So why does that matter? So if your words are likely to incite Lawless action, and that action is going to be imminent, not four months later, "I can't believe I read that article, I'm going to go punch Jim," yeah, right? Okay, that's the [expletive] we're talking about, Brian.

So when we take a look at these capers, folks, you probably wondering, "Man, you guys spend a lot of time looking through the newspaper"—you know, newspaper, I just aged myself—"for legal arguments." Yeah, because it's magic. It's much more entertaining than anything on television.

Yeah. And you know, but the problem is a lot of the cases that people, that become popular, people discuss, aren't usually the best cases for these discussions. They're usually one-off or it's an anomaly or some odd scenario that isn't typical. And everyone goes, "Yeah, but look at this." It's like, "Yeah, but that's so rare that everyone's talking about it, and it's remarkable, and they make a movie about it," right?

Exactly.

And so it's usually stuff like this that we discuss, is why we pick these cases out because they're great discussion points to talk about our rights and what rights people have. And then how again, the legal system works when it comes to what you say and what you do, and how that differs because we look at those differently too. And so we love talking about them.

But one thing, you know, that I, and it kind of goes back to, kind of goes back to the Jeff Ross roast case, whatever that guy on death row, but, you know, there are other exceptions in terms of what's protected, especially with speech, when you have different relationships. So like, of course, doctor-patient, attorney-client, husband-wife.

Husband-wife is one, yeah. Wife does not have to testify against you. Anything you say is seen in confidence.

But even that has limitations to when they have like, especially with psychologists or psychiatrists treating someone with mental health issues or something where they're asserting certain things that they can and cannot report, right? If they think that person is likely to do themselves or someone harm, they, they have to report that stuff. But that's a difficult gray area. We see sometimes where people then go, "Well, why didn't you say something? This person then committed this heinous act." It's like, "Well, I can't say anything at that point, or it didn't meet that threshold." Those things are difficult, and people get, get very upset over that stuff. But those privileges are there to protect us. And it ultimately, even though someone might take advantage of that, or use that in a way, or something doesn't get reported even though it should, in the bigger picture of things, those relationships are necessary for a number of reasons, right? You have to be able to have that, we, there has to be, I have to be able to have a conversation with someone in confidence in order to figure out the situation, right? If, if we didn't have those, I think it would, it would be much worse, right?

Yeah, absolutely. Brian, there's a reason it's called privilege. So those are privileged communications. But if you want to fix something, just like Brian and I always say, "Vote a person in or out of office," okay? And act something. That's what Congress does every day. So, you say that me talking to a priest or my psychologist, and there I disclose that I predate upon children and have sexual encounters with them. There was a time that that was protected. It's no longer. Right? Because people said, "This is something that we have to draw a line. This is a criminal act." And therefore, and there's a lot of crimes that don't cross that threshold yet. Why? Because they haven't been challenged.

Why is an appellate court and the Supreme Court of the state and then the nation, the Supreme Court of the United States, so important? Because we challenge these all the time, and they interpret it. We're back to the Jews interpreting the Talmud and sitting around and spending generations reading a comma or a period or a word and determining the value of that word in the context of the sentence. Brian, that's what the Constitution is. It's a living, breathing document where you've got to bring these arguments forward and have them heard. So when somebody goes, "Oh, now the rappers are talking about this," yes, that's what we need. We need somebody's opinion on it. You know why? Because the opinion of the people on the street—I do not walk into an operating theater and stop the surgeon, even though I don't have any idea what his history is there, anything else, and offer suggestions, Brian, off the street. And that's, we do that too often now. And the journalists are there with their microphone or with their cell phone, because they think it's fantastic. And guess what? It sells. Jerry Springer sells. I know Springer's probably long dead, but whatever, those type of exposes, let's call them, are titillating and scintillating, and people want to see them. So don't separate, or remember to separate, fact from fiction. You know, and these are the perfect articles where people fail to do that. They thought they were smarter than the average bear, Brian.

Well, writing a book about it and talking about it and writing a song about it, and then getting clipped. And it's not just separating fact from fiction, it's, you know, it's looking at the facts, right? But, because what a lot of people say is, "Well, what I want to find the truth." It's like, "Well, the truth can be there. Maybe you're saying that wrong." So it's not the truth, because my true—it's funny, they have all these horrible people on these reality shows, which I thought most of anything, but anyway, they go, "Well, I want to speak my truth." And I love that comment for so many reasons because it's perfect. It's so [expletive] subjective, and it's up to me what I feel and experience. And that's what happens.

Well, at that time and at that place.

Yeah, it's like based on what? That's not, that's a subjective experience. Those aren't the facts of the case, and the facts of the case, of course, are always what matters. But you know, we tend as humans, which is why we have the legal system that we do, the reportings that we do, the Bill of Rights, we have a trial by jury, because juries understand that. We hate having jury trials sometimes, but we also love them sometimes, depending on what the case is, because you got to put it in front of a group of people. And are they the experts at the law or legal procedure or criminal? No, that's the point. They can smell a rat.

Well, right. They're supposed to be able to look at it, you know, a jury appears from a human standpoint and goes, "You know, the, just having the clinical trial antiseptic," it's not really possible because that's not how humans are. You can't, there is no one hundred percent completely logical human being. It doesn't exist. You can be completely logical in one area of your life and then just be a normal [expletive] human being in the rest. And so that's why we have that. And the, the, this is where, I mean, this is where the beauty of it all comes from. It's that mashup between what's been codified, what happened, what can we prove, and then put it in front of a bunch of people. Like, that's a cool, amazing system.

Attorneys, it really is.

Why do attorneys fight so hard to get certain things in or out of evidence? Why do we have procedures for stopping in mid-sentence and trial and objecting to certain words in context? That's why it's magic. That's why I'll never get tired of it. My, uh, uh, what's the actor's name? Lane Smith in My Cousin Vinny, Brian, where he gets up and he's doing his closing arguments, and he uses "heinous" because you use "heinous, hyenas." If you ever want to see that, look it up. You'll laugh for fifteen minutes because he pronounces every vowel in that word, and I always laugh when I get to that.

But what happens, Brian, is sometimes we see those type of jury trials or procedures, and people disagree with this sometimes, and here's one that they disagree with: I tell you, even and especially if you're innocent, always invoke the Fifth. Always ask for an attorney. "Listen, I'm not saying another word, so put me in a jail cell or get me an attorney or let me go." And you're saying, "Oh, yeah, well, you just screwed it up for cops." Now, if you're a cop and you're hooking me, you're hooking me because you already have the evidence against me and you're investigating to get more evidence. Yes. If you're on a fishing expedition, kiss my [expletive]. It's time to throw back the little fish and go after the big fish, right?

Yeah, no, that, that, and that's, that's, we get guests sometimes get hung up on those small things. And you're like, "Look, take a step back. The people will give themselves away, and there's going to be evidence." But no, that's a bit. And do you remember, what was the, those two, remember the two attorneys, the video, "I study, 'Shut the [expletive] up Friday!'" Exactly, exactly, "Shut the [expletive] up" guy. But the great thing was that it wasn't a comedy routine. This is my business. This is what, and listen, you're going to think it's okay to answer those.

And look again, somebody that's been around an axle about this part of our broadcast today, you don't have the right to refuse to tell me who you are or date of birth or where I live. Those type of things, if absolutely everything is legal, you've got nothing to worry about. Like the Fourth Amendment doesn't protect all searches and seizures. Only protects you against ones that are illegal. You get what I'm trying to say? So there again, we're back to that fishing expedition. So calm down, Francis. Things will work out, right? If you're on the side, right?

And you know what? About forty minutes ago, I threw out Escobedo and Miranda. Look up those capers. Why are they capers? Because they were completely wrong. Did they have the right guys? It doesn't matter. It doesn't matter. The way you went about it is wrong.

And then that's the thing. That's what you said, too. We have a system for redress. There is no perfect legal system. But like you just said, I mean, technically, yes, if you've done nothing wrong, you'll be nothing. But that doesn't mean you won't get jammed up for a minute because someone came in off the top rope or saw something that they thought they saw, time wasn't, and they're conducting an investigation. That is, is forty years ago, DNA set you free, yeah, right? Yeah.

So, the idea is there, there are certain, you know, just, just because, "Oh, I didn't do anything wrong, but I don't have to keep my mouth shut." No, you still, still just follow procedure, but you know, you're going to be fine. It just might, might take some time.

So what do you learn as a kid when we're back to the boundary issues? First of all, if I could go back to my younger self, it would be, "Shut up. You're not as smart as you think you are." Okay. Second thing is, file counter-allegations. "I think Jeff was in the kitchen just before I was." You get what I'm saying? I mean, think of all the great things that we could learn from that. And we're just saying, "I have no idea." Exactly. "But you were the only one here. How did this?" "I have no idea. Space Bigfoot."

Folks, Brian said something, he says it all the time, but sometimes you don't know: he puts all of the great stuff in the episode details. So when you go to the site, it's right down below it. He gives a brief synopsis of the episode and then links directly to him where you can click and do your own research. Don't believe us, form your own opinion. Go out and do your research. We're right all the time, I might as well save you the time. But the idea is the discovery learning when you go out there and do it for yourself is amazing. You know, and that's a good one, too, to come across. Like the one you sent me on Jeff Ross and that one, it was like, it was linked from, like, you know, peoplemagazine.com or something.

But, you know, when you, when you get these ones like that that are kind of clickbaity or seem to like big attention, you can then go down the rabbit hole of it. Start looking down, so you Google about that case, and then you can find a petition, you can find court documents, you can find this and comments from investigators after it was done or whatever. You'll dig in and find all the pieces. Are all out there. I mean, there's not going to be one article, one place that has everything, obviously. But these are the great ones to go read. Court testimony is sworn testimony. So, if you don't read what the reporter said or in an interview. Go to what the court testimony said. There it is. Like, there, you know, they're either perjuring themselves or that's what actually happened. So there's, and it comes unfiltered that way, which is good because then, you know, you can kind of get a better understanding of the case.

Well, you certainly protect against bias, right? Because the problem is we always have cognition biases if we're the ones reading it or if we're looking at it. Because the lens that we use is our lens. We rarely use the defendant's lens or the suspect's lens. And you know, what do the best coppers do? What are the best investigators that you met? They put their feet in the shoes of that person at that time and try to imagine looking through their eyes. Those are the best coppers we run into.

And the best snipers and the best IED finders, right? All of those people are the ones that are a little more inquisitive, and they want to manipulate the environment and take a look at it from different angles. Hence Hoberman, hence the Hoberman sphere. You know, if you look at one direction all the time, you're going to get a blasted urine in your face from the dog in the wind and the snow. I know that from yesterday. I don't know what happened. That sounds awesome. Very personal.

Don't eat the yellow snow. Okay. Well, um, so we talked about kind of three seemingly separate cases. But again, I'll put the links in the episode details. You know, this is how we look at things from behavior, and then of course, there's legal lenses that we have to use, especially when we're in the United States, but even when we're not, we still apply that standard to the decision-making to ensure, you know, it's just another way to ensure, "Is what we're doing legal, moral, and ethical? Is this going to lead, could I, if I make this decision, could I prove it to a jury?" And that's the ultimate thing.

I mean, you have to. Would a reasonable person also accept this conclusion and accept this decision? And that's what it is. And that's a very high standard. I mean, it really is a high standard because you need artifacts and evidence in support of a reasonable conclusion, and you can't just come up with a great story. You have to show your work. And that's so good, folks. This is how we show our work. It's like, "Well, this case said this, here's what Supreme Court precedent said, here's what the First and Fourth and Fifth Amendments say, and here's the facts of the case." And if you use that, none of that other stuff really matters, right?

And Brian, because we're scientists, we will update or change our opinion if new incoming information. It has to be.

Yeah, okay. But listen, it's not just, "Hey, I heard over the water cooler that Billy was doing this." We're talking about scientific legal standards. Scientific and legal standards, the threshold of which we set very high. You and I set the bar very high for evidence, not just testimony, because people do lie. Evidence rarely.

Oh, and even when people don't think they're lying, like they're telling a story, and they don't realize that, and their story isn't exactly what happened. And this is eyewitness testimony and everything. It's so subjective. And if, like you said, if you can't back something up with some evidence, century claim, or piece of something, then, you know, I'm not going to weigh that very heavily, you know.

No. And that's why I go, that's why I go to a bench trial versus the jury trial. If I want to go and just on the merits of the case and have a good argument that's based in science and the law, I always go to the judge. Why? Because the judge looks at it and goes, "This follows a rule of evidence. I follow your logic. Yes." And if I'm wrong, it'll be handled at the appellate court or at the Supreme Court of the state or of the nation.

Now, when do I go to a jury? I go to a jury when I, I don't need to, there's an ambiguous amount of evidence that tends to show. And now I want to do what? I want to go for the emotional content. Yes, I'm just like you. "Yeah, I cheated on my wife or husband, but I didn't kill him." You get where I'm going? And you're going, "So everybody that's in a jury trial is guilty?" No. But I'll tell you what, you take a look. Case in chief is the argument. So remember that term, "case in chief." Then all you have to do is look up the legal notes and you'll find out exactly what the attorneys were. It's like looking at the script of a movie. Hendrix song, "Excuse me while I kiss this guy," instead of "kiss the sky." You know, those type of arguments, Brian, to make or the meat on the bone, I love chewing on those.

Alright, well, I think that, I'm hungry. I think that covers everything we wanted to discuss with these cases. Yeah, so we've got more on the Patreon side. We're adding more, and we've got some announcements coming up, too, for some of the things we have going on this year, including some upcoming courses in February, March. I don't know if I want to, should we, should we announce the upcoming textbook now, or should we?

Okay, so here's my thing. Brian and I may have worked very diligently for the last couple of years developing a textbook with all kind of great notes that could be used in academia or for your own personal thing, or we may not have. So the answer to that query will be coming up, just waiting on that publisher to finish that up.

Allegedly. Oh, are you saying it wasn't self-published? We didn't just throw a bunch of [expletive] together and hold it up and go, "Here's a book." No. Yeah, yeah, yeah. I'm not against that. Listen, if you, great stuff, put it out there. Everyone's doing it in every way, and if it's good, it'll, it'll stand the test of time. So that's the other thing. But yeah, well, stay tuned from there. You'll find out more on the Patreon side, too, and the extras we got on there. But we do appreciate everyone listening and supporting the show. Please share it with your friends if you like it, and don't forget that training changes behavior.