205 Comments

You have posted many informative pieces over the years; many have been hilarious as well. But this could easily turn out to be your most important one ever. I hope it provides a clear beacon for some who might otherwise get lost in the fog of the approaching propaganda storm. Bravo.

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Great, thoughtful post. “But I know this: if we’re going down, we should go down swinging, not cringing” had me ready to run throw a wall, and I am a cynical and jaded bastard!

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Funny, that's not even the most brick-wall part of the fine article for me!

As written: if not now, what's the point?

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A Florida grand jury indicted him. A jury with a RW conspiracy theorist found him liable in NYC.

Miracles happen with regularity.

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Not just a Florida grand jury, but a Palm Beach grand jury.

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Grand jury doesn’t have to be unanimous.

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I always tell people that guilt has to be unanimous, and acquittal has to be unanimous. It’s amazing what people will agree to just to go home. It’s one thing to worship Trump in his blue suit and stupidly long tie when he’s making fun of disabled people at a rally, but it’s another to watch him for weeks in a criminal trial where he can’t keep his mouth shut and ends up keeping jurors stuck in traffic just to get to the courthouse and then stuck in the jury room reading the death threats from the non-jury Trumpers, and pretty soon a good prosecutor can make sure the person blamed for all of this bondage is the defendant.

That’s when everybody tacitly agrees to convict the motherfucker and get on home.

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From your lips to God's ears.

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Yes, but it shows that a jury of Palm Beach residents can fairly assess the evidence. Personally, I'm not worried about the future jury, or the judge.

I'm worried about the craven GOP politicians throwing gallons of gasoline into the public square, edged on by the spurious WSJ editorial columnists, and endless pundits, talk radio hosts, and bad-faith podcast grifters.

This was the final and easiest exit ramp for the GOP, and they detonated it without a second look.

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It is crazy how many careers should be over at this point. I think the entire conservative movement is toast. I think they know on some level that there's no coming back from all the lines they've crossed and I think that's what makes the current GOP and conservative establishment so dangerous.

They are going to suicide bomb the United States of America into oblivion and try and take us all with them. They don't care. They have no plan for tomorrow.

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If you want that worry to bloom just go check out Caroline Orr who tracks the RW instigators. Was just reading her latest, and yeah it’s a big mess including Republican US reps using military language about seizing bridges for the indictments on Tuesday to his audience.

I think Orr’s substack is named Weaponized. I still agree that better to go down fighting, if going down we are. I mean, we don’t have a time machine to know in advance which action of resistance to the anti-democratic forces arrayed around Trumpism and the far right will be successful.

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Yes, in a criminal trial, it only takes one to hang. Too soon to say, but, in that case, what would drive DOJ's decision to re-try?

Also, I hope you will provide detailed reporting on the voir dire process, especially if the judge is Eileen Cannon.

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And miracles is the way things ought to be.

https://www.youtube.com/watch?v=tcc2ltIjNU0

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The fact that others in the system are unlikely to do the right thing does not excuse you from doing what is right, even if it is difficult. It's about who you are. Further, future consequences (long and short term) are unknowable, because no one can see the future with certainty. You should base your choices and actions on your character, not the anticipated consequences - otherwise we are all Trump now.

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You miss 100% of the shots you don't take

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Thanks, Coach! ;-)

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Not the quote, "You don't make 100% of the shots you don't take." One way it is true, the other - not so much.

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Mitch, syntactically, that double negative, or whatever, makes it weird. Can we compromise on:

"You make 0% of the shots you don't take."

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Absolutely.

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The long and short of it is that there is a tremendous amount at stake in this prosecution:

1. The possibility that Donald Trump might be convicted and sentenced to a jail term longer than his remaining lifespan;

2. The test of whether the jury system works in the face of MAGA propaganda, including the real possibility that one or more individuals will hide their true beliefs in order to get on the jury to guarantee that a conviction is impossible;

3. The possibility that we will test whether the Court system can handle a judge who is intent on doing the bidding of the criminal defendant in hopes of career advancement;

4. The possibility that the Court, as a physical matter, will be attacked a la the January 6 insurrection;

5. "A judge that's just aching to throw me in jail; an idiot who wants to fight me for $200; slaughtered pigs; giant loud whistles; I ain't slept in five days; I got no money; a dress code problem; and a little murder case that holds in the balance the lives of two innocent kids; not too mention your [stomps twice] biological clock, my career, your life, our marriage, and let's see what else can we pile on? Is there any more shit that we can pile on to the top of the outcome of this case?" https://www.youtube.com/watch?v=eX15un8nf3o

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Maybe this was a bad time to bring it up.

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Golf clap.

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"the real possibility that one or more individuals will hide their true beliefs in order to get on the jury". Ken, please write about this. With all the jury consultants lawyers have at their disposal, could one slip through? I have read that lawyers can search a potential juror's biases on social media. Is that another tool?? Can a the lawyer draw out a juror's bias during voir dire and then base a dismissal of the juror on that?

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The answer to all of those questions is yes. Consider this, though: Voir dire is not to find Democrats, it’s to find people who will take their responsibilities seriously and who will weigh the evidence. The lawyers have lots of opportunities to find out the basics without even asking in person--what primaries they’ve voted in, their neighborhoods, bumper stickers, and most important, their social media trail. In this very online world, it’s a lot harder to lie about one’s beliefs than it used to be.

If a juror indicates to the other jurors by word or action that they lied about their beliefs to get on the jury, the foreperson will let the judge know and if proven the judge will call a mistrial and everything will start over with a new jury. Or, an alternate will step up.

And, the jury is given specific instructions about the law and how to apply it to the evidence. The judge solicits requests from all counsel as to jury instructions and generally uses some combination along with her standard list to charge the jury.

Most people take their jury duty seriously. A person of authority in a black robe in an august setting is telling you that you have to tell the truth or you could go to jail, is telling you when to stand up and sit down and eat, and is telling you how important your job is and what evidence you must consider.

Do phonies slip by? I guess, but in 38 years of practice I don’t think I ever had one, even in cases I lost. Jury duty is an onerous burden. In normal life it takes two weeks out of your life; in this case it could take a month or two or more. Any delays or interruptions will be due to Trump and his courtroom outbursts. There may be physical threats. Your name will be kept secret.

People are complex. Most of the country believes this asshole committed a crime. Seeing proof of it up close can cement that. What they hear in a court of law isn’t going to match what they’ve heard on Newsmax and cognitive dissonance can make people think.

Trump is down to some bad lawyers. By doing his job so well and carefully, Evan Corcoran inadvertently helped to destroy him. Jack Smith on the other hand has a stable of the best and brightest federal prosecutors, and prosecutors live to prosecute bad guys. Like cops, they’re pretty sure that nearly everybody is a bad guy, and they’re all Eliot Ness. And they don’t bring cases they don’t think they can win. This isn’t an experiment with a novel legal theory (the New York case is, kind of) but a nasty criminal caught for his nasty crime. Let the process play out and try an edible. This is gonna be a long process.

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Sure. One could slip through. The weight of all of this rests on the quality of the prosecutor, and even the best can lose.

You still prosecute because serious laws were broken.

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Thanks for answering my questions. However, I've served on over 10 juries (and was never dismissed) so I know it's not about finding Democrats and I know how juries work. And since Trump won, I've learned a lot about federal prosecution.

So you agree with Ken that one could slip through. From inadequate jury consultants or questioning or social media search? Or, if all of those are adequate, the judge doesn't allow the prosecution's request to dismiss a juror for bias?

Thanks in advance for your answers. This is me going to law school in the last years of my life.

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> real possibility that one or more individuals will hide their true beliefs in order to get on the jury

Has happened before. _Clark v. US_, 289 U.S. 1 (1933).

Def concealed employment in order to be selected for jury, _id._ at 7, and then refused to discuss evidence during deliberations. _Id._ at 9. Result was hung 11:1 hung jury. _Id._ at 9.

Conviction affirmed.

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1933! I'm sure jury examination has improved enormously since then. Jury consultants, social media. And this verdict depends on that not happening, so I expect the very best tools to be employed by the very best prosecutors.

Question: Can the jury notify the judge that one of the jurors is refusing to discuss evidence?

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Really hope as many people as possible can read this. Sure I totally agree with it, but the explanation of why DOJ (acting through Smith) really *needed* to do this even with a ton of potential obstacles is very much missing from the discourse.

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GENX FOREVER! #NotABoomer

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Totally agree. At some point someone has to do the right thing, even if the short term consequences are negative, or eventually no one does the right thing anymore.

And it’s possible that having this happen now will get all the brouhaha of takes over with and give Trump more space to turn off voters. Don’t think the indictment itself is changing any minds, but reminding people - even people who don’t love the idea of the current president’s Justice Dept indicting the last guy- that Trump comes with a crap ton of drama and stupidity isn’t necessarily a bad thing.

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This presumes the question at issue, though: that prosecuting is the right thing! The consequentialist will presumably respond that the consequences being negative is precisely what makes it the wrong thing, and it's *good* if eventually people start preferring actions that don't have negative consequences!

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Ah, this is what Josh meant by "consequentialist ethics". Now I understand what that is. I don't know if I can stand with such ethics because consequences are rife with unintended ones. That's an argument conservatives use against federal government social programs like welfare.

Alos, how can you know what the consequences will be?

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I think you’re right that will be the argument. Although I would respond that “the right thing” is applying/following the statute and any documented policy on what that looks like in practice, not the prosecution itself (and if you disagree with the statute, there’s a process to change that 😁). But yes, there will be lots of focus on the outcomes vs the underlying principles.

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What’s the negative consequence? A criminal goes to prison?

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As I understand the way Josh expressed it, the negative consequence is something other than a conviction and all the political backlash from Trumpers that brings.

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Meh. The guy crimed. Josh is not a lawyer. Let the system play out.

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Agree with Ken, let the system play out. But he's not any guy who crimed. He's the leader of a personality cult. His followers are mentally ill. (See "The ‘Shared Psychosis’ of Donald Trump and His Loyalists" - https://www.scientificamerican.com/article/the-shared-psychosis-of-donald-trump-and-his-loyalists/.)

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I was alive for the Manson trial. Cult, Schmult. You try criminals. And the bigger the criminal and the bigger the crime the greater the moral and legal imperative to try them.

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So was I. In fact, I read Vincent Bugliosi's terrific book on it, "Helter Skelter". He had 100 followers. In the Trump cult there are tens of millions and a good chunk of them believe in political violence (https://www.theguardian.com/us-news/2021/nov/01/republicans-violence-save-us-poll#:~:text=Almost%20a%20third%20of%20Republicans,according%20to%20a%20new%20poll.) and they're armed.

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One thing I try to remember is that a Florida Grand Jury voted to indict, so that gives me some hope about jury selection. Judge Cannon is more worrisome; perhaps being rebuked by the higher court (I forget which one) may have changed her perspective.

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It seems to me that this entire case could be viewed as a kind of tutorial in the rule of law under the Bill of Rights.

1. “...no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

2. “No person shall be held to answer for a capital, or otherwise infamous crime [i.e. a felony] unless on a presentment or indictment of a Grand Jury....”

3. “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation....”

So far, this is what has played out. The burden on the government is relatively low with respect to obtaining search warrants and indictments. After that, the rights of defendants and burdens on the government become far more substantial.

In addition to having a right to be charged and tried in the State and district where the alleged crimes occurred, Mr. Trump and Mr. Nauta have rights to competent counsel, to subpoena and confront witnesses, to not be compelled to bear witness against themselves, and most importantly to be presumed innocent until proven guilty beyond reasonable doubt. In addition, if they are acquitted, the government can’t get the jury verdict overturned on appeal.

I don’t know if there are any circumstances that might persuade Trump cultists that a verdict against Trump might actually be legitimate. But if the government cuts any corners or whines about the many burdens prosecutors must overcome, that will virtually guarantee that Trumpistas will regard as illegitimate any verdict other than acquittal. The government has to play the cards they’re dealt; there’s no guarantee it will be a winning hand.

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And as Jack Smith said, presumed innocent until proven guilty.

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Yes. And I thought his presentation yesterday struck all the right notes. It was crisp, sober, and without frills. Leave all the hyperbole to the defendants. The prosecution just needs to do their job with wisdom and professionalism.

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Uh-GREE!

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> circumstances that might persuade Trump cultists that a verdict against Trump might actually be legitimate

Yes, but there is a problem the other way. We have a Trump-appointed judge in charge of the case of the person who appointed her. This is one who has already been found to have erred in favor of her benefactor.

It seems unlikely that any acquittal, of even the smallest charge in the bill, be considered legitimate under such circumstances. That is, few people who are paying attention will accept a not-guilty as being legitimate. If Trump is to announce the acquittal, he needs to have the appearance of legitimacy, and having a trial before a biased judge whom you appointed is not the way you gain appearance of legitimacy.

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Joyce Alene mentioned yesterday that there is a strong possibility she will have to recuse based upon recent history https://twitter.com/joycewhitevance/status/1667166126881619969

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Andrew Weissman and others discussed how important it is to choose the right venue to avoid problems later. Jack Smith is such an experienced prosecutor that he surely has been strategizing how to bring this case if it remains under her.

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There's certainly not much point in non-experts being worried on the internet about it. Smith forgot more than I know about federal criminal prosecution while he was preparing toast this morning.

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Ken White had a different view in the non-emergency Serious Trouble podcast last night. It was more based on process over credibility.

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Thanks, sticko...my Boomer unicorns and pixie dust have once again been unleashed by Lawyer Vance.

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Ken disagreed with that in yesterday's podcast.

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Ken,

Thanks for the prose and your analysis/explanation.

It's important to have this trial considering the facts presented in the indictments.

I read and hear comments about a trial hardening the MAGA-base to its debased god-king.

How can Trump's base (a majority of a minority) get any harder?

[They certainly can become that much poorer via his fund raising on his victimhood.]

An open trial will allow the country to hear and see Trump's depredations and cavalier attitude toward national security. [Think 1-6 Committee presentations.]

Hopefully, open-minded Independents will be horrified by him and his sociopathy to become the linchpin to vote to save the Republic from the Sessionist-in-Chief.

Now, Gen-Xer, you can say, "Okay, Boomer, thanks for the unicorns and pixie dust in regards to this issue."

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Agree how can the indictment "rally" his base anymore than they are already rallied? They are in a cult of personality. They can never leave him. He knew that when he made his famous "shoot someone on 5th Avenue" statement in early 2016.

All pundits say he has a ceiling. The only question is can his legal troubles make that ceiling higher. That's up to the moderate Rs and Independents. I sure hope the Dems are targeting them.

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I find it hard to believe that this case will increase his ceiling. Are there really Republicans out there that are thinking -- "I really don't like Donald Trump, he's got the whole January 6th thing and lost to Biden, but if he gets prosecuted for serious crimes that makes me feel bad for him and I'll vote for him again."

I can't see how when all the evidence here gets laid out if helps.

But, I've been wrong about Trump and his support before ...

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Is is being a boomer ( I am) why I tend to the unicorns and pixie dust?...lol

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Yes, Angie...it was the extra cuddles and huggles we received in post-war U.S. of A. that deluded us into thinking the world was all about "Peace, Love, and Bobby Sherman."

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Oooooh, Bobby Sherman. Poster in my closet throughout my adolescence.

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He did melt the hearts of many a Boomer teenage girl.

I was a Motown and surf music guy as a pre-adolescent and teen.

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"Julie, Julie, Julie do you love me. . ."

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ha ha....you have a point

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Hi Angie!

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Hi Sandy

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♥️👋🏻

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Worth noting: the greatest starship captain in Star Trek canon cheated his way into turning the Kobayashi Maru exercise into a winning situation.

Unless you’re one of those weirdos who thinks Picard was the greatest captain in Starfleet history. In which case I don’t know what to say to you.

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Pedantry and Star Trek are inseparable concepts

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my people

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Had Chris Pine acted the entire Kirk oevre, he might very well have been the greatest captain in Star Trek canon. But he didn't. The role was mostly consigned to the cringily scenery-chewing Bill Shatner, and bad acting counts. Consequently Picard was in fact the greatest captain in Starfleet history. Sorry, but I don't make the rules.

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Stewart as Picard was brilliant and I mean no disrespect to either. But Kirk is the only person to beat the Maru exercise. Ipso Facto.

Reasonable minds can differ.

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Well, you could start with. . .

"Of course, you're right. Picard is the greatest captain in Star Fleet history."

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I always find your stuff fascinating. This time it’s surprisingly moving, as well.

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Retired court reporter here -- retired from Branch 3, Kenosha County Circuit Court, that court, the court Kyle Rittenhouse was tried and acquitted. Several years retired from Branch 3, I watched the livestream events of that fateful night and the trial that ensued. Was I surprised at the jury verdict? No. Baffled? Yes. Perplexed? Yes. But not surprised. Countless times over my 30 years of service, many verdicts were perplexing, shocking, confusing. Should a defendant not be charged or tried because the process is too weighty, too difficult to obtain a conviction? Sure seems Jack Smith has considered all sides of this question. Our rule of law must hold. The defendant must stand trial.

Remembering the trial of a 25-year-old cold case, the verdict after the defendant testified it was his gun, he pulled the trigger, he killed the victim, he stood to hear his fate after jury deliberations: "Not guilty." I'll never forget his strange answer to a news reporter asking for his response. "I'm mortified," he exclaimed. Perplexing? Very.

Our system isn't perfect. Jurors are not perfect. Every single one of us brings with us our own perceptions, some kind of bias, our own life story that affects how we perceive and choose to think about outcomes. Voir dire is crucial in ferreting out those whose biases prove untenable. We must trust Jack Smith and let the process play out.

A good attorney will paint a clear picture, a story that makes sense, a presentation where the facts add up. Witnesses lie on the witness stand. Shocking? Shouldn't be. Judges have their own biases. Perplexing? Nah. Jurors are brought together from many walks of life. A jury of your peers? Not really. Trust Jack Smith, the prosecutor, knows all these things. This is not the first complex trial he has had.

Should Kyle Rittenhouse not have been charged? Should the 25 yo cold case not have been charged? Absolutely not.

We need to be bold, trust our system. Without the rule of law, we no longer have a democracy. Tyranny lurks. This is our crossroads. We are not to search for doubt. We are to search for truth.

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After sharing this latest piece with my elderly mother (who voted for TFG twice) she has said the information is “mind-altering”. She also said she will never vote for Trump ever again.

The explanation of the Rule of Law was particularly helpful.

Great post, oh my!

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Whoa! Congrats to your elderly mother. Did she mean the information in the indictment was mind-altering? (Was she a young adult in the late 60s/early 70s?)

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Interesting story. I believe it was one of Bob Woodward’s books that began to open her eyes…

Ken’s post was “mind altering”.

She’s a smart woman and can think for herself given information that is not tilted.

Young adult in the 60’s/70’s … no much older than that.

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Older than I am? Then she's an extraordinary woman.

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Would love to tell you more. I read your profile and you sound amazing!

I just don’t want to plaster my mother’s views all over the internet!😬

I am Laurie, at incougnito1@gmail.com.

Pleased to meet you!

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Done.

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In terms of the junior associates, hopefully with time they will understand that it is more important for them to be competent, zealous advocates than to get the "win." I've had a few of the "must get the win" types as opposing counsel back-in-the-day. They are easily manipulated and waste their client's money. Winning is fun, but even the best of advocates loses cases and motions, sometimes deservedly and sometimes not. You will not always win, but there is no excuse for not always being a zealous advocate.

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Carmen Hernandez, the attorney for Zach Rehl in the Proud Boy trial, was mocked online at times for her tendency to talk long after the judge told her she was done, but she was a well-qualified federal defense attorney who did bring that zealous advocacy throughout the trial. Unlike some of the defense attorneys in that trial she was advocating for her client on principle, not affinity for the defendant's ideology.

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