Advisory Opinions - Missouri Executes Marcellus Williams

Episode Date: September 26, 2024

Sarah and David look over the case of Marcellus Williams, whom the state of Missouri executed on Tuesday after he was sentenced to death for the 1998 murder of Felicia Gayle.The Agenda: —Controversial speakers galore —Marcellus Williams case: justice or murder? —A cop and a prosecutor walk into a bar … or rather, this AO episode —Should you join FedSoc? Why are we even asking this question?Show Notes: —World Prison Population List Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. And David, we thought we'd start a little bit with a death penalty case that you've been following. There was an execution this week.

Yes, there was execution on Wednesday evening. It was the execution of a man named Marcellus Williams. And he was convicted of killing a 42 year old former St. Louis Post Dispatch reporter named Felicia Ann Gale. Always when we talk about these death penalty cases, we try when we talk about these death penalty cases to never just stampede past the crime and to ignore the victim in the case because all of these cases begin with a horror of beyond horror. And this is no exception.

Somebody broke in to the house. She was in the house when they broke in and was stabbed brutally. I mean, just brutally murdered. Just a terrible, terrible crime. And so always, I think it's so important to acknowledge the horror of what happened at the seed of these crimes before we then talk about all get into sort of the dry legal procedural stuff. But so this was a terrible, terrible crime. It went unsolved for about 15 months until police charged Williams with the crime. And at first glance, the case looked, you know, really pretty strong. I mean, first Williams was not a sympathetic defendant at all.

He had previous convictions for burglary and armed robbery. And he was accused of the crime by two people, his girlfriend and a jailhouse informant. And they told a really terrible story. They said that Williams had told them that he went to the house with the intention of burglarizing it. When he arrived, he knocked, trying to maybe trying to figure out if somebody was home. When no one was answered, broke a window pane on the door to enter the house. When he got inside, he heard water running, realized someone was there, grabbed a knife

from the kitchen and waited for the person to emerge. This sort of lying in wait element is a big part of some of the, a big part of many criminal, I mean, capital punishment cases. And so when the victim came downstairs, according to the story, he stabbed her to death, took her purse, took another bag containing a laptop computer and a few other items, then goes and picked up his girlfriend in his grandfather's car. So it was not his car. It was a car he was allowed to drive.

And then his girlfriend testified that he was wearing a jacket, even though it was a really hot summer day, and that she saw scratches on his neck. He first said he'd been in a fight. And then his girlfriend said the next day he confessed to the murder. And then to corroborate her story, the state introduced evidence that it found a ruler and a calculator belonging to Gail, the victim in the car, introduced evidence that William sold the computer after the murder to another person. And during the trial, they introduced a lot of evidence of his extensive criminal history, including 16 different convictions, including armed robbery.

And so, you know, when you walk through that evidence, it seems really rough. It seems really rough for Williams. I mean, this seems like a daunting case for the defense, but there was a problem. So the crime scene was terrible. But it included a lot of physical evidence. There were bloody footprints in the house. There are bloody fingerprints in the house. But the footprints didn't match Williams's shoes. The fingerprints didn't match Williams either. There was DNA found under the victim's fingernails and that didn't

match Williams. Hair samples found at the scene didn't match Williams. There was testimony that the laptop was sold at the behest of actually Williams's girlfriend that Williams sold the laptop with at the request of the girlfriend. Now that evidence was suppressed because of hearsay rules. And I don't think there was a real problem with the hearsay ruling in that circumstance. But as the prosecutor's office later asserted, when the prosecutor made a motion to vacate the judgment against

Marcellus Williams, the prosecutor asserted that with all of this evidence, once you took another look at it, the person with the most direct connection to the crime was the girlfriend, not Marcellus Williams. Also, the witnesses themselves were, you know, they had a long criminal history. And there was some evidence that one of the witnesses who had said that Williams had talked to him had been telling people that he had something going. There was a $10,000 reward.

Also, a lot of their testimony didn't actually match the physical evidence of the scene. So his girlfriend said he went through the back door, but the broken window aligned with the deadbolt on the front door. The girlfriend said that Williams had rinsed the knife. In fact, it was left in the body. And then as I said, Cole was really interested in the $10,000 reward. Also, there were issues with jury selections. Gail is white, Williams is black. The prosecutor used six of his nine preemptory challenges to exclude six of the

seven black prospective jurors. And then it turns out that later DNA testing found out that there was no DNA evidence from Williams on the murder weapon. The actual, it turns out the actual DNA on the murder weapon was from the prosecutors that from handling the weapon. There wasn't DNA from Williams on the weapon. There wasn't DNA from Williams on the weapon. And so a lot of this began to emerge over time. And as it emerged over time, the prosecutor actually switched his position on the case. There was a new prosecutor brought in, you know, these are elected prosecutors, the prosecutor's office, I should say, switched its position so that by the time the execution arrived, first, the Missouri Governor, Eric Greitens,

people might remember him from some of his own scandals, sex scandals. But while he was still governor, he appointed a commission to take a look at the case. The commission didn't release a public explanation, but the new governor, or it convened a panel, the newer governor dissolved the panel without really, there wasn't really a conclusion that was publicly reached. So an execution date was set. The St. Louis County prosecuting attorney, who by the way, just beat Cori Bush in the Democratic primary for Congress. So that was a public service, but he filed a motion to vacate the judgment.

After he filed the motion to vacate the judgment, the prosecution into the defense actually entered into an offered plea, a plea that would have vacated the death penalty part of this, but Williams would have stayed in prison. So the prosecutor in the defense reached a plea agreement where that Williams would stay in prison, but no death penalty, and Williams would continue to collect evidence of his actual innocence. The Missouri Supreme Court reversed that plea. So the Missouri Supreme Court said no to the plea. Execution date went ahead as scheduled.

Supreme Court denied a request for a stay, 6-3, and he was executed yesterday evening. A lot of people, a lot of people, conservative and liberal, on Twitter were, and online and in commentary, were extremely just gut punch, heart sick about this. And it, not so much because the evidence that there had been a proof of innocence here. I walked through, I tried to walk through the evidences as well as I could on both the prosecution and the defense side, not because there was proof of innocence. In other words, none of this stuff cumulatively was definitive in that he was actually innocent. But it raises one of these really interesting questions, which is what happens if after

a conviction, there's sort of a growing additional weight of evidence that casts more and more doubt on the actual conviction, but it isn't open and shut like imagine if they had tested the knife and instead of finding his DNA or the prosecutor's DNA, they'd found the DNA of the girlfriend or they'd found the DNA of another like six time, or a burglar who was in the system.

Something like that is this kind of textbook storybook. This is when we find innocence. This is not that. It was continued accumulation of doubt post conviction. And the interesting thing about that, Sarah, is there's not really a great clean way in our legal process to sort of say, as opposed to, oh, hey, here you go, boom, actual innocence. Instead, it's here you go. Lots of additional reasons to wonder about this case,

so much so that the prosecutor's office joins with the defense to try to get rid of the death penalty. And the Missouri Supreme Court says no, and then the US Supreme Court didn't touch it. And this is, I got to say this case, and I want to be super clear on this, Sarah. I do not, I'm not going to sit here and say he was actually innocent. I think there's a chance, maybe even a good chance, that he committed the crime. But there is a chance, maybe even a good chance, isn't the right standard to take a man's life.

And so this is where, this is a fascinating sort of Rorschach test that I just, I've never been able to pronounce that word. Yeah, that wasn't really that close. No. It was not close. Roar Shock. Roar Shock. Really? Yeah. Yeah. Oh, listeners, you got to tell us Roar Shock. Never heard that.

What? Roar Shock. Okay. Who's right? Who's right? But anyway, whatever that kind of test is, it's sort of a fascinating test is to sort of, through which prism are you viewing the death penalty? And, you know, this is a murder that took place a long time ago. And, you know, just imagine the agony of the family, just this pulling out year after year, month after month, new revelations,

new details, new court proceedings. And so, you know, this is an interesting kind of prism through which to view the death penalty. What do you do in this circumstance when there's this accumulation of evidence that really casts a very substantial doubt on the prosecutor's story? What do you do? What do you do? What do you do? So I wanted to highlight that because it's, I literally couldn't sleep last night, Sarah. Like I literally couldn't sleep last night thinking about this because what's the harm here in accepting the plea to eliminate the death penalty here?

Why would you not accept the plea that takes this to life in prison as opposed to a death penalty when the prosecution and the defense agreed to it? Agreed to it. So there's just a lot of reasons why this troubles me. So a couple things. One, just before everyone jumps in about Rorschach, I think an alternative correct pronunciation

would also be Rorschach, like with an A-er sound. That's what I would... But not whatever you said, just to be clear. No, I will. I freely confess to whatever garbled thing came out of my mouth was neither of those pronunciations. I think shock or shock would both be acceptable pronunciations, just not what you said. Yeah.

Second, am I correct that also the victim's family asked to stay the execution? Aaron Ross That is the reporting that I've seen. I believe based on my own, my own look at this case, I would say maybe more like the family had no objection to this being a life sentence. Kaitlin Luna Got it. It's not legally relevant at all, but it is perhaps relevant to some people listening of where the victim's family stood at the end. So I think it's an interesting case to highlight for people for all the reasons you said. But again, we have a bit of a CSI problem, I think, in our society where people expect there to be rock solid evidence from science all the time for everything and that's rarely the case.

And so on the one hand, I mean, everything you said is right. And on the other hand, I also, you didn't say this, but object to the notion that some would have that, well, if we didn't have his DNA evidence there, then that's enough for me to say that he didn't do it or something like that. That's not how real life works. CSI isn't a thing. And you'll hear from prosecutors all the time, the CSI jury problem of jurors expecting more

science than there is out there. And in fact, I think it encourages junk science. And we talked about junk science problems before of, what was it, the bite marks, right? That there was this science around bite marks that turned out to be totally bogus stuff because prosecutors are trying to meet jury demands for science, as well as of course the prosecutors want,

it's more evidence, right? I don't mean to put this on juries entirely. But David, this is a different case than just, I think some of these other, let's call them true crime legal podcasts, where they try to point out problems that frankly, I don't think are genuinely there a lot of the time. And I think it should be meaningful

that there are so many true crime stories. I don't mean to pick on podcasts. It's just sort of a cliche. There's literally a TV show called Murders, Only Murders in the Building about a podcast that's a true crime podcast because everyone keeps getting killed in the building. The fact that you can have so many where basically you could throw a dart at a board of some murder prosecution and be able to make a podcast about how maybe the person didn't do it should tell you that there's a problem here because you can pick apart any case, basically. When you look at the staircase murder guy where his wife's sat at the bottom of the

staircase and he blames an owl. And you know, there's a documentary, there's a series with Colin Firth, and it turns out he was sleeping with a documentary filmmaker and now she thinks he's guilty. And oh, it turns out that his neighbor in Germany was also found dead at the bottom of the stairs with the exact same pattern.

Like guys, what else do you need here? You think an owl did this? Let me tell you about owls. Owls don't do that. So I'm torn about this, David, because there was evidence in order to believe the problems with this case. You have to believe that somehow the girlfriend got stuff from the murder scene and put it in the car that they both had access to, as well as finding problems with the case, you have to explain away the evidence that is in the case in a non-conspiratorial fashion for me

and overcome that jury finding. That all being said, you know what I think about the death penalty. And maybe this isn't really the emblematic case for I think about the death penalty. Maybe this isn't really the emblematic case for my problems with the death penalty. But I think life in prison is a horrible punishment and the death penalty has so much finality to it. If everyone agreed, I think we should... I think it's an interesting question in the law of what you do with, as you say, not actual innocence, but what if we keep looking into this levels of innocence, but

it's also been 25 years, like how much more time do you need? Well, yeah, I mean, I think that, you know, when I look about this, when I think about this case, I think the thing that really, there are several things that sort of tip it over because this is, as I said, this is not a case where the DNA finding was the girlfriend's DNA was on there, there was some other person's DNA on there, that would be kind of that mic drop moment, right? And it's sadly we found in past death penalty cases, right? In actual innocence cases, especially as DNA started to come out, which should make us very nervous about all the cases before DNA came out.

Though, interestingly, as far as I'm aware at this moment, there has never been a proven case of someone being put to death that we now know was innocent. I think we can make some assumptions based on numbers. In the modern era. Oh, sorry. Yes, I'm not including. Yeah, yeah. Which is in and of itself interesting. Well, and I think that's part of the product of the fact that we do, we have slowed down the process a lot. That the very thing that frustrates

a lot of death penalty advocates has actually been the firewall that has saved some people who are actually innocent from death is are these extended post-conviction proceedings. Because we've talked about this, Sarah, before, and we've talked about this in the context of criminal justice reform.

How many super high profile cases have we seen where there was a major issue? You know, in Alec Baldwin, for example. I mean, you know, we could go down the line of these high profile cases with major issues. So if when all of the eyes are, you know, public's eyes are on prosecutors and their hiccups and stumbles and problems, you know, lots of these despicable cases unfold, not really in the glare of public attention. There might be some local media or whatever, but this idea that the process in those cases is going to be better somehow than the process in a lot of high-profile cases where we've seen the process warts and all, you know, I think would be a naive belief.

And so I think the thing that just really tipped this over because I had been following this case for a while. It was one of those cases, I have a sort of a number of cases that I kind of look at what's going on, they've intrigued me. So I'd followed this case for a while and then what began to tip it over for me was when the prosecutor in the case filed his own motion

to vacate the judgment. That's not normal. Okay. Well, well, it's, look, I would 100% agree with you if it had been the prosecutor who had tried the case, but it wasn't. It was an elected DA who came in on this sort of platform of being criminal justice reform minded. And so it was actually very

much in his interest to find a case where he could ask for the death penalty to be vacated. That's the problem that you have with that piece. That being said, again, that's not that shouldn't be legally relevant. He represents the office of the district attorney regardless. Exactly. So I'm with you and the legal relevance, but it doesn't carry the same amount of moral weight for instance. If the prosecutor who had actually tried the case had come around and say, you know what, I see all this new evidence. And if I had had that evidence at the time, I would not have brought this case or I would not have sought the death penalty.

That would be very different to me than someone newly elected who ran on that platform coming in. Again, not legally relevant, just morally. Right. No, I agree with you. And again, this is one of those cases where there isn't the definitive mic drop. Like that would be close to a mic drop, right? If the original prosecutor who did it said-

There's a whole lot of not quite mic drops here. Why not quite? So in what circumstance do you put a man to death as opposed to life in prison? And we'll hear from our sponsor today, Beam. How would you define your relationship with sleep? Are there challenges? Trouble falling asleep or staying asleep?

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To learn more about this lawsuit and Utah's public lands, visit StandForOurLand.Utah.gov. Well, David, we got a lot of responses on our criminal justice piece and our conversations on that, and I wanted to read some of them. And to start, just a short point that several of them made was the difference between federal and state prosecutors. And you know, we've talked about this in the judicial context and the difference between, for instance, a lot of state judges are elected versus federal judges that are all appointed. And does that change the quality or the federal criminal law is so different and the types

of cases that assistant US attorneys, federal prosecutors bring, therefore is so different and the types of cases that assistant US attorneys, federal prosecutors bring therefore is quite different than state prosecutions, the resources available, all of that. And we didn't really make much of a distinction in our criminal justice conversation of the difference perhaps in quality. And I don't mean quality like, oh, these state prosecutors are bad, but the number, the numbers that we're talking about. And you can tell because of the numbers of people in federal prison versus the numbers of people in state prison, the federal system, the one that I know best and frankly, the one that you know best isn't really where most of this action is happening.

No, that is very true. And yet we weren't really making that distinction in our conversation, so that is worth a note. Second, also that in talking about plea deals, we weren't really distinguishing between who's trying to make the plea deal. You could have easily left our conversation thinking that the government's reaching out and being like, hey, we charged you with these 10 things, how about you plead to this one and we all move on.

That's not the way that happens. It's the defense reaching out for the plea deal most of the time in these cases. They start that conversation. I don't think that changes the thrust, but it's worth noting that it's a two to tango situation there and that the vast majority of plea deals are non-binding. So of course you have a neutral arbiter, the judge, who has to accept that plea deal for what that's worth. I think to the extent we didn't highlight that, that's important. But David, to your point about the high profile cases, we actually got an email from a police officer and I wanted to read some of his take on this as well. And

then a federal prosecutor wrote a longer email. So I'll just read both of those and have your thoughts after each one, if that's all right. Yeah, absolutely. I would strongly encourage you all to reconsider the argument that goes, if high profile cases have all these problems, how bad must the low profile cases be? It is at least my subjective experience that it is exactly those high profile cases where

the state and individual prosecutors have incentives to prosecute cases that shouldn't have been brought. Not to put too fine a point on it, but some prosecutors want to make a name for themselves. Even without that consideration, however, there can be a lot of pressure exerted through both formal and informal channels to prosecute high profile cases, especially ones with broad celebrity appeal or media interest. Think Kyle Rittenhouse, right? I think Mr. Martin's brought a ballot

Baldwin, which is in some ways similar. Celebrity defendants and press are addictive. There are no such incentives for the invisible cases. I had my local county attorney's office dismiss felony charges on three out of four defendants in a theft case today. Shoplifting from target is not exactly the kind of crime that the U.S. Attorney's Office is interested in until you start getting into the mid to high six figures. None of these defendants were ever going to get prison time on this case in my state. There's really no satisfying way to illustrate how frustrating this dismissal was. But I think I at least may have detected some shame in the prosecutor's voice when he said, I agree that happened,

but I think it will be hard to convince 12 jurors in this county. It may amuse you to hear that I even brought up the fact that they would have accepted a guilty plea three months ago, but now that the defendant wants to exercise her right to a trial, the case is suddenly a bad one. And I agree with you that that's not right. It would be unbecoming to moan too much

about my personal frustrations, but just consider that the state has zero incentive to play games with cases no one hears or cares about. It has been my experience frankly, the county, in fact, desperately seeks any excuse to drop these invisible cases. As a minor pet peeve, I don't think it's right to talk about qualified immunity as a defense for good faith mistakes. Police in the US are, as far as I can tell, uniquely exposed to liability based on the vagaries of court decisions entirely outside of their control. Minnesota v. Dickerson is my go-to example for this. The day before that case, some officer probably arrested someone for contraband they found by manipulating

something through the clothes on a terry frisk. That arrestee went to jail and experienced other harms. Then Dickerson comes down the next day, and now that's an unconstitutional arrest, right? Absent qualified immunity, why shouldn't that officer be sued? He clearly violated the arrestee's rights, didn't he? I have never in my life seen anyone to even attempt to articulate a doctrine that would defend against that suit that wouldn't just recreate qualified immunity, mostly because somehow the question never seems to even occur to anyone. I was a little bit frustrated by Mr. Martin's discussion of pretrial detention. I don't think he was right to say that most people being held on property crimes are being held for quote dangerousness reasons. Last year I arrested a young lady for theft. She had at the time of that arrest 17

active warrants of varying degrees, mostly for theft and related offenses. She was on probation for multiple felony convictions, both in juvenile and adult court. I think it's unlikely that she ever voluntarily appeared for a court hearing. She was still released with her new charges within a week or so. I could rattle off dozens of similar cases. Granted, there's tons of regional variation, but it's a perennial frustration of mine

that it's a valid strategy for certain criminals to just never show up for court. Sure, they'll catch a warrant, but who knows how long before they get picked up and if it takes you three years to get a case to trial, who's left to subpoena? Specifically regarding Mr. French's concerns about lower level use of force in Dr. Friar's studies, I agree that it's concerning, but I think there's a lot of factors Dr. Friar doesn't consider.

It is just an unfortunate fact of my career that in a little over a decade of police work, I've been to dozens of murder scenes and something like 150 is shootings, mostly in my six years as a city cop. Black Americans were either the suspect or the victim and usually both in literally all of those. Every last one, all of them. This is before you consider hundreds of robberies and other violent felonies. Now, I would like to think that I am the perfect being of pure rationality, but it might also be the case that I'm a little bit quicker to establish physical control of a black suspect than a white one in a roughly comparable scenario, given my years of experience of the realities of street violence. It's also absolutely the case that

I am encountering black citizens whose appearance is consistent with the description of a suspect in a violent crime way, way more frequently than I'm encountering Asian or white citizens under the same circumstances. And considering that any use of force is involved in a single digit percentage of arrests, and much less than that percentage of all stops and calls for service, and I think we're just working with slippery facts in that arena. I reject Dr. Friar's theory that he advanced in a conversation with Rafa Mangual, that it's because I think lesser force is just no big deal. I think Dr. Friar still just isn't passing the intellectual Turing test with regards to police.

With regards to plea bargains, I guess I would ask Mr. Mertens if he thinks he accepted guilty pleas from innocent persons. This is the kind of illustration of how I think you guys probably got the arrows wrong in the high profile cases. There's a great little essay written by a public defender named Yassine Mescout about just how guilty most of his clients are. Like, almost all of them. I really recommend it. And we can put that in the show notes. He sent the link to it. Maybe the view from the hallowed halls of the offices of the U.S. Attorney's office is a little different. But like, the defendant did it. The evidence is generally overwhelming. And even when it is overwhelming, sometimes the not-my-pants defense is allowed to fly regardless. Sure,

my perspective is obviously biased, but basically everyone is guilty is a hard problem to solve without most people pleading out. I do certainly agree that charges shouldn't mutate. It also drives me nuts when I get a case dismissed notification and look it up and the prosecutor made 3-5 felonies disappear so they could take a plea on another one, or they'll do stuff like dismiss all the felony charges in a case and take a plea on a gross misdemeanor, etc. For what it's worth, I think, again, my bias, my side of the fence is the most under-resourced cog in the machine. There's a great graph from a paper from MIT of all places a couple years ago

that plots various countries by their cops per homicide ratio, which is a novel and useful measure. Oh, that is fascinating. The ratio of cops per homicide here is a fraction of what it is in basically every other developed country. This is even worse for other types of crime

and everything feeds off itself. It is my opinion that a good part of why our crime rate is so bad compared to our prosperity is because we systemically underpolice. Even the affluent suburb I work in now has a ratio under one police officer per 1,000 residents. That's unheard of in Europe. I do absolutely agree that this thing where criminal cases can wait years for disposition is just broken. Per my example above of the person on probation with 17 warrants, these long

delays for disposition just defeat the whole system. The research I'm aware of is that immediacy and certainty of apprehension have significant deterrent effects, while severity of punishment has very little deterrent effect. So we have a lot of room for leniency and sentencing, but we may have massively under-resourced the front end of the system. We should want a system where criminals are swiftly and reliably captured and then are held to account quickly because that's frankly how our little monkey brains work. As a final morsel for thought, I always push anyone talking about criminal justice reform

to include crime in their metrics for success. Security is the actual reason the state exists. Roads, water, education, all that other stuff is just a frippery before security. Love the word frippery. In fact, security is what makes all that other stuff possible. There's not a scandal-induced consent decree in the history of the country that's done anything other than drive up crime in the affected city county, for example.

And yet somehow, none of the dissent decrees are ever accountable for crime rates. Indeed, they and their monitors don't really seem to be accountable to anyone for anything. How will this affect crime? Is a question that must be asked about all reform measures.

But I have gone on too much at length. Be thankful you don't have to read my 5,000 word arrest and investigative reports, I suppose. I would love to read his 5,000 word reports because this guy is a good writer, by the way. Can I just say? A good writer who is citing all of these studies who clearly really invest in his career, if that makes sense. Very impressive response. I got it.

I just, I don't know who you are. Super impressive response. Thank you. Was it all police or this guy? Oh my gosh. Like, okay. And I take his point on the high profile cases. I actually, he's totally convinced me.

You've lost me entirely on the high profile cases and I think he has an excellent, excellent point. I have a rebuttal to that. But let me just say, this is like having a think tank head walking the beat. Like this is, it's amazing. So major props to you. Okay. So, so a few things in response to what he said that I will agree with, violently agree with. So number one on plea bargaining. I don't think we're necessarily, and I would love to hear some rebuttals to this, when you're talking about defense-initiated plea requests, is not quite the same as coercive plea bargaining in the way that we articulated it and have articulated it in previous cases.

Now, I could say that there would a defense initiated plea request could be happening under the shadow of coercive plea bargaining. In other words, okay, if I don't aggressively seek this plea, I might get a excessive sort of an indictment that's beyond the facts or, you know, be placed in a difficult, you know, be placed in a position where some coercion could be involved. But I do think a defense-initiated plea request is not really what we're talking about truly when we're talking about coercive plea bargaining. And a ton of pleas are defense initiated. Because as this officer said, tons of people are caught

with overwhelming evidence of guilt. And so a plea is in their immediate interest. Number two piece of violent agreement. When he talks about police presence and certainty of punishment as deterrence for crime, yes, I mean, we've talked about this, Sarah, a lot, that if you're actually talking about what is it that brings down crime rate, what actually deters crime is presence, immediacy, and certainty of punishment. It is not severity. But we have a system right now where I would say

there is some degree of certainty in the sense that if you are a criminal, you'll eventually get caught. But it is not in the circumstance of, if I do this next crime, I will get caught. Or if I do two more, I will get caught. It is much more, it happens sort of eventually. So that there's actually a rational decision-making process that many criminals go through that any given crime they commit, they will get away with. Maybe not all of the things that they commit over the course of their lives, but any given crime they feel like they've got a pretty good chance of getting away with it. And I think that that creates a real problem.

So that means, you know, when he's talking about we're under policed, as far as number of police officers compared to sort of the population, I would agree with that. And I think one of the interesting things about, dealing with the prior crime waves in the early 1990s, when it was so much worse than it is now, you remember Clinton was like a hundred thousand more cops. That was one of the core elements of like the Clinton crime plan

was just getting lots more cops out there. So well-trained, high degree of presence, the core elements of like the Clinton crime plan was just getting lots more cops out there. So well-trained, high degree of presence, you know, highly visible, well-trained, certainty of punishment, all of those things. I think that's, but that's not where we tend to go. We tend to go with severity of punishment as our tough on crime measure, not certainty, not presence. And now let me push back a little bit on the prominence point.

Totally by, I totally buy that high profile cases result in extreme pressure to prosecute and then that pressure to prosecute can lead to papering over problems in the case, concealing problems in the case, totally by that. I don't buy necessarily that when your case number 17 out of 373 on a prosecutor's docket and that means it's actually going to be dealt with in a much more professional process. I think the pressures are different. The pressures become, I've got to clear cases, man. I've got to get convictions, I've got to get closures,

I've got, and so the pressures there aren't so much, I have to get this individual conviction or the public is gonna be on top of me. The pressure is I have to get a lot of convictions, plural, to clear through this staggering docket that I have. And that creates a different kind of problem than the problem of the high profile cases. It's just a volume problem, a lack of attention due to volume, a lack of problems created by volume. You talk to people in the criminal justice system, and the whole thing is under-resourced.

The whole thing is under-resourced, or inefficiently resourced is another way of putting it in such a way that there are pressures on prosecutors that interfere with the administration of justice. They're different in the lower profile than the higher profile. But I don't think that the lower profile cases are systematically more professional. And I don't think that's the argument that he's making.

But I take- No, he's making the argument that you can't use the high profile case problems and assume that it's the same thing ballooned in the lower cases, which I think he proves that point. Yeah, I think he makes that point pretty well. Yeah, I do think he makes that point very well. Here's the problem, David. It's the public policy is trade offs, but no one likes acknowledging the trade offs. And so this conversation I had about Minnesota passing a free school lunch law, it's a really good idea, right? So like every student in Minnesota gets free school lunch,

no matter your needs. So that way, also the kids who need school lunch aren't stigmatized by having some voucher they hand off and like, oh, that's the poor kid who gets free school lunch. That's a great idea. But I guess like the point that I would make with that is, okay, but where else could that money have gone? Could it have gone to make your criminal justice system more fair? Yeah. I mean, or it could

have gone to any number of other things that you may care about, but we don't ask voters that. We don't say like, here's the 10 things we can spend $200 million on. Let's, you know, put these in some rough priority list. Instead, we only mentioned the thing that, you know, we want, never mentioned what else it could go to, never mentioned the trade-off of the other thing that won't get funding. And when I really push people on the left about this, the answer is, well, we could tax more. I'm like, yeah, but that's a trade-off too.

People will leave your state eventually, or they will leave the country eventually. And, I mean, there's plenty of studies on this. The tax revenue, it's sort of like what fraud, waste and abuse is on the right. There's not enough fraud, waste and abuse in our government to fund a whole bunch of things you want, dear right. And on the left, there's not enough billionaires for you to tax to fund all the things you want on the left. And so anyway, I get to this criminal justice point.

The system needs more resources. It needs attention and changes to get to, I think, exactly what you're saying, David, certainty and swiftness over harshness. But there's not a lot of constituencies for having that conversation right now. And there's definitely not a lot of constituencies for the guy who wants to run on lowering the jail time for child pornographers, for instance. And I just wanna be clear, I'm not for lowering the jail time

for child pornographers. Perhaps proving the point. Yeah, just super fast on that. And again, if you're talking about more cops on streets, notice I said well-trained because it is not just putting more folks out there. And if they're not well-trained and they're put in positions of extreme stress, then you could see more George Floyd type situations

that would create its own spiraling list of problems. And so, you know, yeah, I hear you completely, although I will say there is one silver lining to the very dark cloud of the inflation that we have been through. And that is this modern monetary theory BS that we heard from the far left for years that actually deficits don't matter. Government spending can be essentially infinity without creating real blowback. And that's why we can finance single payer health care and we can finance the Green New Deal and all of that's just dead. Put it on the credit card.

Yeah, that's just dead for now. Like that's just dead for now. I remember reading a piece by Noah Smith, who's just a brilliant guy. And he was talking about the problem of excessive government spending. He says like going down an infinite quarter with an invisible pit, at some point, you're going to fall into that inflation hole. You just don't know exactly when. Well, we hit it. We hit it a couple of years ago. And I think, you know, it's very interesting to me that the question is who has learned that lesson and who has not learned that lesson. And so that will be fascinating. But that's totally off topic. Sorry. All right, I have one more email from a federal prosecutor. I was disappointed in the last couple of pods

that discussed the topic because I felt like they were playing into the too common media narrative that, quote, the justice system is broken. The prosecutors are bad and want to coerce, force innocent people to plead guilty. I'm a strong believer in our criminal justice system and I think we get it right the vast majority of the time.

Is the system perfect? No, of course not. It is designed by humans and carried out by humans, so of course it has flaws. But of course, most of the coverage by the press is when there is a mistake, not the other 99 times we get it right. Take for example the term mass incarceration, a term I hear repeatedly in the media. Not one you used on the podcast, so kudos for that. But the term is highly loaded. It brings to mind mass murder, and it couldn't be farther from the truth. We don't line up 100 people and give them en mass prison sentences.

Every single person in the criminal justice system receives individualized personal consideration of their personal history, criminal history, and the facts of the case before they are sentenced. That couldn't be farther from mass incarceration. But let's talk about some of the things in your podcast. You and David seem to suggest that our system is illegitimate because there aren't a lot, percentage-wise at least, of jury trials. Why is that? The purpose of a jury trial is to resolve disputed issues of fact, not to

provide some undefinable sense of legitimacy to convictions. If there is no disputed issue of fact, why should we have a jury trial? A defendant always has a right to one, of course, but if the facts are beyond dispute, then why dispute them? Take a famous example, the murder of Lee Harvey Oswald by Jack Ruby. Millions of people witnessed the murder on live television. What most people don't know, however, is that Jack Ruby insisted on and was given a jury trial. He was convicted at trial and sentenced to death, but the conviction was reversed

because the appeals court said venue should have been transferred and testimony regarding Ruby's confession of premeditation should have been excluded, and he died before he could be retried. A lot of cases are very straightforward. A guy caught with drugs in his pants doesn't have a whole lot of defenses.

A felon with a gun in his pocket doesn't have a whole lot of defenses. A felon with a gun in his pocket doesn't have a whole lot of defenses. If we can prove their identity, a bank or convenience store robber similarly doesn't have much hope of a defense. A man has child porn on his phone, computer, and messages where he sends those videos to other people? Not much of a defense possible. Illegal immigrants. Either you are here legally or not. It's pretty straightforward. I could go on. The cases that tend to go to trial either have a weak spot. The bank robber wore a mask so it's not a slam dunk to prove identity or there were four people in the car where the gun was recovered so showing possession is a challenge or require difficult proof of mens rea. White

collar cases where you have to show intent to defraud come to mind. Your guest, the author, said plea bargaining is premised on telling lies and coercing people out of jury trials. I take great exception to those claims. I am under a duty to be truthful and candid with the court. How can a plea be premised on lies? Nor do I believe that most pleas coerce people out of jury trials. To be clear, I'm not saying this can't or never happens. It is, of course, possible to charge someone with capital murder and then leverage that threat into an essentially inconsequential plea, like to a misdemeanor assault or something like that. But I think that kind of egregious situation rarely occurs.

There's a big difference between coercion and providing an incentive. We should want people to plead guilty because it is an acceptable, sorry, because it is an acceptance of responsibility for a person's wrongful actions. Getting a lower punishment because you've taken responsibility and told the truth makes a lot of sense and we shouldn't limit or prohibit it. We should be careful not to offer so much of an incentive that becomes coercive, but the system has a built-in check to protect against that. Judges. At both the state and federal level, a judge has to approve a plea agreement. At the federal level, most pleas don't bind the judge and he or she has the discretion

to give whatever sentence they feel is appropriate. Judges can and should be on the lookout for plea agreements that cross the line into coercion, and when that happens, they should reject those plea agreements. I'm not saying they always do that, they are humans too, but it's unfair to blame the prosecutors only when there is an agreement that looks coercive, especially since the defense has agreed to that plea. I think the rate of high guilty pleas is actually an endorsement of our system, not a sign of rampant coercion. They signal the strength of the cases prosecutors are choosing to bring, cases where there is no dispute on the facts. And what you don't see are the cases that prosecutors reject. We don't charge every case that law enforcement brings us. A significant percentage of cases are rejected.

The number varies by jurisdiction, but when I was a state prosecutor, it was probably around 30% of cases. There were various reasons for the rejections. My point is that prosecutors are already weeding out the weak cases, lowering the likelihood of a trial. Rather than being the product of coercion, I think the drop in jury trials in criminal cases is due to much less nefarious causes. For example, one, increase in prosecution for crimes that are straightforward to prove as described above. Two, improved ability of law enforcement to prove their cases. Think DNA evidence, video surveillance, cell phone location data, etc. Three, better screening of weaker flawed cases by prosecutors. And four, increased diversion for low level offenses. The last factor is really significant. Thousands of cases are diverted every year,

giving low-level offenders the chance to do rehab, drug court, community supervision, et cetera, to avoid a formal conviction. Is that a bad thing? I certainly don't think so. Let me put it a different way. Has the way prosecutors handle cases and offer plea bargains changed significantly

since the year 2000? I don't think so. But studies have shown a 26% decrease in jury trials from 2007 to 2019. If our plea bargain practice hasn't really changed, then the difference has to be some other factors. I submit they include the factors I listed above. DNA became much more prevalent in the early 2000s. Cell phones started becoming ubiquitous around 2000. Really good and prevalent security videos didn't really become common until we had large enough

drives to store the footage. And diversion was really just taking off around 2010. Those factors combined decreased the likelihood of cases with disputed facts which drive down the need for jury trials. About your three proposed criminal justice reforms? One, paying public defenders the same as prosecutors. Fine, I have no problem with that. I want better attorneys on the other side, not worse. I don't make a whole lot so I'm not sure it'll fix the situation, but I have no problem with us being on the same scale. I think that is already happening in a lot of places. Private defense attorneys make a whole lot more than me. Two, cap 10% discount if you plead. Okay, 10% of what? Of the

max? In Texas, every first degree felony has a range of five years up to 99 life. So if a person is charged with a first degree felony, the only plea you could offer would be 90 years. But what about probation? Because depending on the offense and the defendant's criminal history, do you like how I just pronounce that like it was football? Sorry, depending on the offense and the defendant's criminal history, they might be eligible for probation even for a first degree felony. So how does that factor into your 10% calculation? I think this is completely unworkable. When I was a state prosecutor, I based my plea offers on what I thought a jury would likely give

someone based on all the factors of the case. It was almost never the absolute maximum. Why would a defendant plead to 90% of the punishment? They would all roll the dice on the chance of a jury verdict if they are going to be guaranteed such a hefty sentence. No dismissal of charges. Why? This doesn't make any sense to me. Often the number of charges does not affect the sentence. Most of the time I don't charge all the available charges so I'm already exercising that discretion up front. Why does it matter on the back end if I dismiss a charge, especially if it's not going to affect the ultimate sentence?

That's too long. I'm gonna stop writing now. But I'm tired of the portrayal the criminal justice system is broken and of prosecutors as corrupt individuals who just wanna take everyone's rights and freedoms away from them. For most of us, that couldn't be farther from the truth.

Another great email. Yeah, this made me want to bring Matt and our correspondent back on the podcast and have them just chop this up in person because I thought that again, a great email. Let me focus in on one thing here. So okay, I understand the term mass incarceration. Mass incarceration is a very loaded term. It implies things that are not happening, as he said, like we're just sweeping through towns and rounding people up.

But I want to share with you some numbers here. So right now, according to the world prison population list from the International Center for Prison Studies, there's about 10.2 million people held in penal institutions around the world. About half of these are concentrated in three countries. The US with the largest population by far of 2.24 million people. Russia, 680,000. China, 1.64 million people. Now there are additional people reportedly held in administrative detention in China, 650,000, also 150,000 in North Korea. And if you include those, then you're getting over 11 million. Now, let's put aside the Russia, China, North

Korea numbers just for a minute because, yeah, I don't necessarily believe them. And they don't include, for example, say, the way in which totalitarian countries kind of can almost imprison or confine people and limit people's freedom in dramatic ways without actual incarceration. But 2.24 million people, we have the largest, certainly the largest prison population rate per capita. Okay, so we have the largest prison population rate per capita. We have the largest number of people in prison. And I, on the one hand, I understand America is just more violent than many other developed countries. It's not just that we have more gun crime, we have more knife crime, we have more baseball

bat crime, we have more fist crime, we have just more crime. So America is this really unique nation in that we have the economy and the prosperity of the most advanced liberal democracies in the world. And we have the crime rate of like South America. And so we're just a unique country. We do have more violence. We do. And so you can't do a one-to-one.

Like our crime rate is not going to be exactly the same as our prison population rate with the crime that we have. It's not going to be the same same as our prison population rate with the crime that we have. It's not going to be the same as like a Norway or whatever. And we've always been more violent. You go back to the colonial era, the colonists were a contentious, violent bunch of people. Not all of them, but you know, so you go back, America has been a more violent place for a long time. But to the extent that we should have the largest prison population rate per capita in the world, that's where I'm getting dubious.

That's where I'm getting dubious. And a lot of this is related to the severity of the punishment. When I interviewed Justice Gorsuch this summer, you know, one of the points that he made was and he raised this, he said, there's more people serving life in prison in the United States right now than there were people in prison in the United States several decades ago. So I'm not, whatever you want to call that, whether it's mass incarceration or what, I believe we're out of balance with the actual criminal problem that we have in the United States.

And we're going about trying to solve it in many ways in the wrong way, which is through severity of punishment as opposed to, as I said, police presence and certainty of punishment. And that's where I think we're ending, we're kind of stumbling into this world where we're just putting a lot of people in prison for a very long time without a deterrent effect. And so that's what concerns me about it. But again, I'm very, very happy to have these emails because I do think that there's a necessary response to, I think a lot of folks who are criminal justice reform minded folks, and I count myself,

and in that number of a criminal justice reform minded person, often in making the case for criminal justice reform, you gloss over the reasons why the current system exists. And the reasons why the current system exists are really related to the tough reality that this is a violent country, that there is a lot of violence in this country. And that is going, we're more violent than, you know, many countries in the, almost all countries in the developed world. We're more violent than many countries in the developing world.

We have a history and legacy of being violent in this country. And so I do think that there, this is a very tough, tough, complicated issue. I do not think the answer to our issue is to become the most carceral free state in the world. All right, David, before we leave this episode, David Latt over at Original Jurisdiction

had an interesting asked and answered that clearly is made for this podcast. Should I join Fed Soc? And I'll read the question that he got from this law student. I'm a 1L at a T14 law school. By the way, for those who are not lawyers, that's a top 14 ranked law school by US News and World Report. Somehow the terms T14 and third tier toilet, which is T3 are the terms. So this is a top 14 law school. I'm a 1L at a T14 law school and I'm writing to ask you your thoughts on whether I, an originalism and textualism attracted individual, should join the Federalist Society. Given, one, it's already existing reputation among the political left.

Two, it's seemingly evolving reputation among segments of the right. And three, the general increase in political polarization and tensions on campuses. I want to join the Federalist Society, but I worry that joining may one, alienate me from some classmates, and two, harm future job or clerkship prospects. So, what say you? Is Fed Soc still the place to go for law students interested in originalism and textualism, or have increased campus tensions and negative media stories on the Supreme Court of Fed Soc sufficiently raised the downsides of joining that you would advise against it. I suspect similar questions may be on many 1L students' minds right now. Sincerely yours, faked-hearted FedSoccer.

And David followed up. So here's some additional information that is going to be relevant, I think, to our conversation as well. This 1L is more drawn to public law subjects like constitutional law and criminal law, as opposed to private law subjects like contracts and corporate law. The 1L else interested in possibly clerking, working as a prosecutor or serving as a judge someday. As of now, the dream job would be to work for the office of the Solicitor General at the U.S. Department of Justice. He's open to working in big law, but that's not his main focus or ambition. In terms of political leanings, he has no party affiliation and considers himself politically homeless right now. He described himself as definitely libertarian

oriented and a classical liberal in favor of free markets, free speech, and the strong protection of civil liberties. In general, I think we ought to live and let live. Okay, David, what say you first? David Tate, MPP, MPP First, I like I like this person. I mean, a libertarian minded politically homeless individual. Hey, David, did you write this email? David Tate, MPP, MPP I'm like, hey, come on the podcast. You'd feel really at home here. So my answer is a pretty emphatic.

Yeah, yes. Join the Fed Soc and for a couple of reasons. Well, more than a couple. Here's one. Don't believe what everyone else is saying about Fed Soc. We have, you and I have a lot of experience, both, you know, I was part of Fed Soc in law school, much less, much more casually than you were, Sarah. You were like the queen of Fed Soc at Harvard. The title was president. We

don't have monarchies. Well, you, you ruled with an iron fist, but that's true. There was no election for me to become Fed Soc president. I mean, there was technically, but you know, the way Putin got elected. Yeah, you seized power. I mean, there's just no question about it. Yeah, that's true. So, but we are both involved in Fed Soc and we have, I have spoken at, I couldn't even begin to tell you how many Fed Soc chapters over the years.

And I will tell you, as a general matter, as a general rule, you're actually dealing with a lot of people that are not, it is not as ideologically monolithic as you may have heard. Often, as a general rule, it's a just a pretty friendly, intellectually inquisitive bunch of folks. And I have seen in recent years sort of a rise for a time of kind of that post-liberal ethos in some Fed Soc chapters, mainly concentrated at the Amor elite law schools. But even that, interestingly enough, and I'd love your thought on this, Sarah, seems to have faded post-Dobbs. Like, I think the Dobbs decision took the wind out of the sails, out of sort of the common good constitutionalism and a

lot of the post-liberal legal thought on the right. And so what you've got is, you know, yeah, any group, you're going to find some ideological cranks, some weird or angry people or whatever, but I guarantee you, you'll find that in student groups on the left as well. But as a general matter, I think that joining FedSoc is you're going to interact with a lot of good folks who are dissenters from sort of the campus orthodoxy. They find each other. They create a real sense of fellowship within the law school. I've actually had a number of people reach out to me

over like the last year, 18 months, who are kind of in the same position, you know, ideologically homeless, libertarian leaning, originalist, textualist leaning as well, who were worried about Fed Soc and then have found it to be just a really good place. I'm not gonna endorse every chapter. They all have their own personalities

and their own leadership and their own issues. But my general, you know, I've said this before, Sarah, we'll say it again. For all of the crap that is poured out on Fed Soc and for all of the facts that there are some people at Fed Soc, like John Eastman, cough, cough, who were major, who are very bad actors. The bottom line is it was Fed Soc judges who stopped the big lie. It was, you know, the Federalist Society helps save, Federalist Society judges helped save America from a constitutional crisis in 2020. And there's just not sufficient credit given where credit is due there. And so, yeah, I'm not going to call myself a Fed Soc partisan. I'm certainly

open to, for example, competing right-leaning groups. What's it called? The Society for the Rule of Law? Yeah, the more the merrier. I am happy to, you know, if campuses can have like 37 different Christian ministries, they can have two right-leaning legal groups. I mean, so it's not, it doesn't have to be exclusively Fed Soc, but my general view is I think, don't say no to it because of the media coverage of it. Go to it, see the people who are there and say yes or no based on the people

that you meet, not the overarching sort of media reputation controversy. Okay. That was a good answer, a fine answer. And now I'm going to beat up on this anonymous student. Oh, my gosh. Okay. I thought we liked him, Sarah or her or whoever. Yeah. Here's what I think. One, I'm concerned about your future legal career. If you're so tied up and not about what other people are going to think that you can't decide for yourself whether to join a student group or like attend the student group and make up your own mind. That's not good as just like a quality and something that I hope

you think about as you proceed in your legal career. We've talked about the examples of John Adams representing the British soldiers in the Boston massacre trials. You clearly wouldn't do that because you'd be so worried what others would think of you. We need more lawyers who don't do that. Second, you're worried about this hurting your future harm for job or clerkship prospects, but the jobs you want to do are at the SG's office in the Department of Justice and being a judge. How do you think this works? There's two teams, dude. Unfortunately, like we've talked about this a lot. What's the difference

between a lawyer and a judge? A judge knows the senator. What's the difference between a lawyer and a judge? A judge knows the senator What's the difference between a judge and a justice? The justice knows the president this idea that like you can just keep being middle of The road and never pick a team and never say what you actually believe and that will help your career prospects No, I don't think we were ever really in that world. We use John Roberts as an example on this podcast of sort of the filibuster era, how you would become a judge and a justice. Perhaps I've left you with the wrong impression. When I say John Roberts didn't write a lot about his beliefs, I mean, he wasn't like, hey, abortion, I hate it.

I would definitely overturn Roe v. Wade, XOXO John Roberts. To be clear, John Roberts was in senior jobs in Republican administrations because he was a staunch and outspoken conservative during those times. I also think it's worth considering a totally separate reason to join Fed Soc than just, you know, the pick a team if you want to do this stuff, which is Federalist Society. The reason that rather the American Constitution Society never really took off, which is the left-wing version of the Federalist Society, is because they couldn't offer anything that you weren't already getting in class. You're already getting the liberal or left-leaning version of how to think about, I don't know,

criminal law, for instance, or torts, you know, things like that. And so there wasn't any separate education to be had. You already read those things in class and discussed them in class with top tier professors. What the Federalist Society is offering is a second law school education. But this time you're reading totally different stuff. You're hearing from totally different scholars, entirely different perspectives on those same issues that you were previously discussing in class. That's the value add. And so you're almost getting a, I don't know, maybe not a second JD, but like a half a JD. So you leave with 1.5 JDs. You're ending up

reading a lot more law review articles, speeches, books, than your counterparts. And that's the value add of Fed Soc. So either that's attractive to you or not. And it's why Federalist Society over the years used to be quite attractive even to center left and left leaning students because of that intellectual curiosity and that additional education and debate environment that the Federalist Society provides. I agree that at this point, the conversation has become so poisoned and polarized that center-left students tend not to go because then they're accused of being Fed Soc adjacent. They are only hurting themselves by not having to understand and grapple with what is now the dominant judicial philosophy of a lot of judges, dare I say the majority of

judges by having to really learn the evolution of originalism, text history and tradition, different approaches to these same topics that are being covered in the classroom. So frankly, I think you're all cowards. I think it's bad for the legal career in general, not because you won't get jobs, but because you'll be bad lawyers. And, you know, stop caring so much what other people think. All right. Can I just... I know David Latt was not expecting that when he was like, hey, Sarah, I think you'd have fun discussing this. That's so let me, let me, let me moderate that a tiny bit. So I agree with your top line conclusion. Don't live your life worrying about what other people think. Like do not if you're if once you

get in that habit, timidity is habit forming. It is absolutely habit forming. So if you make a decision that I'm not going to do the thing that I want to do because of what other people think now when I'm a law student, guess what? The stakes only rise. The stakes only get higher throughout your life. So if you can't decide right now that I'm gonna do something that actually pretty much matches my convictions,

but I'm worried about perception, get ready for that to be a habit in your life. But here's what I would say, a lot of younger people, and I've actually talked to so many people about this, especially people of faith, they have been sort of bombarded with a message, bombarded, that if any secular institution knows who you really are, you're done. That you don't have a future, you're going to be discriminated against, it is over for you.

And I can't even tell you how much that message has absolutely wormed its way into people. So to such an extent that they just actually feel like if I put down on my resume that say I was, you know, that I belong to a Christian ministry, or if I was on Fed Soc, that I'm just done in everything but this very narrow part of conservative America. And that's just not correct. That's just not correct. There's an enormous amount of preemptive, unnecessary fear and anxiety. Now I'm not going to say that you'll never face adversity because you belong to a Christian

ministry or you'll never face some degree of scorn because you're part of Fed Soc, but I can't even tell you, Sarah. I talked to a lot of conservative and Christian college students and they have been absolutely just under this. And part of this comes from right-wing media and right-wing social media that it's just, they're done. They're over for their future if they say A or B or C about they're genuinely true about their lives.

And I just know that is not the case. I'm not saying that there aren't individual instances of discrimination and there aren't individual instances of mistreatment. But this idea that you're just done in the United States of America, if it's known that you're evangelical or that you went on an LDS mission or that you want to join Fed Soc or anything like that, that is not the world we live in. And I just- No, I mean, the top appellate litigators at Jones Day, Kirkland and Ellis, Paul Weiss, they're all Federalist Society.

And that's just the ones I'm thinking of off the top. Sorry, Sullivan and Cromwell. I'm sorry for all my friends who I'm forgetting out there. But during my interviews, I had one law firm say that I was disqualified because I put Federalist Society on my resume. And I'm happy to say it out loud. It was Arnold and Porter. You know, great. Don't go there then. But to David's point, this idea that like these law firms aren't taking Federalist Society folks. But I guess my point is even if that were true, if your career goal is

to be Solicitor General of the United States and a federal judge, look around in this post filibuster era. I know. United States and a federal judge look around in this post filibuster era. What in the world would make you think that you can just take the straight and narrow path and just avoid the criticism? The whole point is to see whether people can withstand the criticism for their beliefs. But okay, David, I beat up on this kid enough. David Gardner And one other just super quick thing is that But okay, David, I beat up on this kid enough. David K Because there are people who join because it will help them get a clerkship and that's gross too. Like just don't just do live out your beliefs, whatever those may be.

Learn the things that you're curious about. Have humility, have intellectual curiosity, follow it, take risks, you know, love and be loved. But I don't know the plotting out your entire career as a one L so that you can be Solicitor General and a federal judge probably isn't a great path because I assure you that again, Noel Francisco, Paul Clement, go look at how they became Solicitor General. It was not just like one step after another and then I took the next step and then boom, I was Solicitor General. La la. There were a lot of accidents and luck and everything else along the way. So you might as well have a fun, interesting career that you like.

And maybe you'll be SG out of all of that. But I always point to John Kerry, this person who wanted to be president his whole life so badly. And he had an incredible career, but instead it's disappointing cause he wasn't president. Like that's no way to live life.

David, can I give a preview for our next few episodes? Long Conference is next week. So we've got two more episodes in one of them. We're going to talk about the farting leprechauns and the Fifth Circuit. They had their own bunk argument. I'm excited to talk with you about that. And a little preview of some of the cases coming up this term and especially in this first oral argument block that's going to start

October 7th. And then Cannon Shamigam, friend of the pod, Paul Weiss, Federalist Society member, my dear little one out, gave his speech at Duke in defense of the legitimacy of the Supreme Court. And David, I'll just be honest, I've read it now several times and I keep going back to read it. And I thought about how we could do something with it on the show. And I just decided that reading portions of it or even, you know, having Canon talk about the speech wasn't sufficient. So we got audio of the speech. And we have Canon come, you know, talk about it a little bit and then play the whole speech, which I think is just worth people listening to. No, that sounds like a great lineup.

It really does. And can I just say, I loved this pod we just recorded. I just love that police officer. That's it. The rest of the pod I could take or leave, but man, that was such a good email. Also, David, I'll tell you, I'm out in Columbus and I spoke with the Columbus Bar Foundation. They have an event for high school students and it's public high school students from across the city who get to attend this, you know, white tablecloth dinner and hear a speaker

on civics basically. And I spoke about counter majoritarianism and how they could, you know, how we should want the Supreme Court to make unpopular decisions, that the worst decisions the Supreme Court has made have been the popular ones, and that they should apply that in their own lives and find those moments to be counter majoritarian, whether it's sitting with someone at lunch who isn't a cool kid or whatever else to break with their own friends or group or tribe or anything they can find. And boy, you can feel really cynical about the state of our politics in an election year in 2024.

Go have dinner with a bunch of high school students and you will have a pep in your step. These kids are ready to take over and I am ready to hand them the keys. Yeah, yeah. I'm so glad you said that, Sarah, because I just think there, if you are living on social media and you are looking at the state of America from the state of Twitter, you're just getting a highly deceptive look at the state of American young people. You know, I just had a great experience at BYU. And meeting those young kids and talking to them,

it made my soul feel better actually. It really did because the world we live in where we are just in this constant storm of outrage, there's what is somebody mad about today, sort of the ethos of much of the world that we live in and to encounter people who are half a step removed from that and they have enough perspective and real life touch grass experience, there's a lot to be optimistic about in this country.

And there's a lot of people to be optimistic about. I tried to go around and meet as many of them as I could and sort of ask them what they wanted to be when they grow up, why are they here basically? And this one young woman, I asked her why she's here and she said, well, I want to be an appellate lawyer. And I said, appellate you say? And I was like, are both of your parents lawyers to even know the word appellate? Because I didn't know that word until I was probably a second year law student embarrassingly. And she said, no, no, none of my parents or family are lawyers. I was

like, okay, how do you know the word appellate? She goes, oh, I'm going to be a Supreme Court justice. And I was there with Judge Raidler, who very kindly invited me to speak at this thing. And he goes, well, she's going to be the one grading my paper, so I better be nice to her now. And it was just this wonderful, great moment. Another young student wanted to hand us her resume because she really wants an internship in government. And so she's trying to get to her mayor's office and things like that. And like, she's going to do great at life. And these are the kids who are hungry and want to participate and make things better. So it was great. And with that, we shut the books on another Advisory Opinions.