Legal AF by MeidasTouch - Abortion, Kidnapping & Insurrection—what could go wrong?

Episode Date: April 14, 2022

The midweek edition of LegalAF x MeidasTouch, the top-rated podcast covering law and politics, is anchored by national trial attorney and strategist, Michael Popok and former prosecutor and leading criminal defense attorney Karen Friedman Agnifilo. On this week’s episode, Popok and KFA analyze whether: 1. A Georgia Federal Judge will lead the way to have Marjorie Taylor Greene bounced from the primary ballot under the “anti-insurrectionist” clause of the 14th Amendment. 2. The Federal prosecutors bungled the prosecution of the 4 militia members charged with conspiracy to kidnap Michigan Governor Gretchen Whitmer leading to two of them being acquitted by the jury 3. A Texas Prosecutor is a hero or villain for her role in the indictment of a woman, turned in by a Texas hospital, for using abortion drugs for her unwanted pregnancy. Follow Legal AF on Twitter: Legal AF: https://twitter.com/MTLegalAF Karen Friedman Agnifilo: https://twitter.com/kfalegal Michael Popok: https://twitter.com/mspopok Remember to subscribe to ALL the Meidas Media Podcasts: MeidasTouch: https://pod.link/1510240831 Legal AF: https://pod.link/1580828595 The PoliticsGirl Podcast: https://pod.link/1595408601 The Influence Continuum: https://pod.link/1603773245 Kremlin File: https://pod.link/1575837599 Mea Culpa with Michael Cohen: https://pod.link/1530639447 Zoomed In: https://pod.link/1580828633 The Weekend Show: https://pod.link/1612691018 Learn more about your ad choices. Visit megaphone.fm/adchoices

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slash legal slash ca dash pru dash disclaimer. Welcome to the midweek edition of Legal AF, Legal AF Wednesdays with your host Michael Popak. I'm Karen Friedman Agnifilo. And today Karen and I are going to do three stories that are ripped from the headlines. One, can a federal court judge take steps to stop Marjorie Taylor Greene from being on the ballot for reelection under the 14th Amendment's disqualification clause? Two, what went wrong with the Governor Whitmer of Michigan kidnapping trial? And why did a federal jury let two of them walk, acquitted them, and hung on the additional counts for two others? What happened there? I want to hear it from the former prosecutor, KFA. And three, it was inevitable to happen in the land of SB8 and Handmaid's Tale in Texas.

A Texas hospital turned in a woman who used abortion-inducing pills for murder. And she was so indicted by the local sheriff there in Starr County, Texas, wherever that is. And a prosecutor put on a cape and put a stop to it. We're going to talk about that from our former prosecutor's perspective as well. Karen, we've got a lot to talk about and a lot of things right in your wheelhouse. Are you excited? I am. And you look so nice tonight in your suit, Popak. Thank you. I wanted to lead you to believe that it was only for you and the audience, my double-breasted suit. We were going to have, as we announced last week, Robbie Kaplan, a lawyer extraordinaire who is litigating the

don't say gay constitutional case in the Northern District of Florida. But because, you know, like you and me, she's a practicing attorney, something came up and we're going to postpone it for a week or two. So I dressed up slightly nicer for Robbie. But I could do this with you. We could just dress nicely every time we do a podcast. Why not? Well, you're also a lawyer by day. So lawyers still dress like lawyers sometimes.

Ben, my Salas, your colleague in law and my colleague in the podcast, he looks like he went to his hamper just before he podcasted and put on whatever he found that was clean. So that's a whole other approach to podcasting. It works. We're looking for audio downloads anyway, so it really doesn't matter what we look like. literally a year after the end of the Civil War to prevent former members of the Confederacy who had participated in a rebellion and insurrection against the United States of America from ever holding office again, written into the Constitution. It was ratified a year or two later, and that was it until, in 1872, an amnesty law was passed to allow for a certain period of time certain former insurrectionists to come back to the United States and potentially hold office again. elected officials whose candidacy, whose eligibility for being on the ballot this spring

is being challenged by constitutional and pro-democracy forces. One of them is Marjorie Taylor Greene. One of them is Madison Cawthorn. One of them is Paul Gosar. And they all have similar federal suits filed against them to take them off the ballot, or at least to have their state's election board, usually under the auspices of that state's secretary of state, determine eligibility to be on the ballot with reference to Article 3 of the 14th Amendment. And of course, all these candidates are like, no, you can't do that. And Cawthorn, we'll talk about him too in relation to Marjorie Taylor Greene, actually got a North Carolina, Trump-appointed federal judge and former law professor to agree with him that some law in 1872 overrode the U.S. Constitution

to allow a free pass to all future insurrectionists of any shape, size, or creed from holding office again. And he got this judge to buy this argument hook, line, and sinker. Fortunately, the Fourth Circuit, which is the Court of Appeals for that region, probably has something else in mind. But let's talk about Marjorie Taylor Greene. Her case, she filed in federal court, assigned randomly in the Northern District of Georgia to who? Who was it? You tell me. Oh, okay. Nina Totenberg's sister. Oh, Nina. Nina. Nina Totenberg. Yes. Nina Totenberg of NPR Supreme Court fame. Come from a very famous family. The father's a famous Polish violinist Holocaust survivor and had at least two daughters, one of which is a sitting federal judge in the Northern District of Georgia, appointed by Obama on Amy Totenberg, whose sister is Nina Totenberg. wrong judge. And why don't you tell the audience what the judge's initial impression was off of a recent hearing and in reference to the Madison Cawthorn ruling and whether she's going to go

in that direction or make her own law? Yeah, so I get the impression that in this particular case, Judge Totenberg is going to rule differently than in the Cawthorn case. And it's sort of, it goes back to what you were talking about, the 1872 Civil War amnesty provision of the 14th Amendment, you know, where they said for a little while, you can look back and people who are in the Civil War, you'll have amnesty and you could come back and you can run for office. And this both cases hinge on whether that law is retroactive or prospective. And in other words, did it apply only to look looking backward at the Civil War or does it apply for all times? And it looks like the Cawthorn case and the Cawthorn judge thought it, you know, read it one way.

And I think it's not going to go so well for Marjorie Taylor Greene. And I think it's going to go. Let me ask you. Let me ask your opinion. You have a you have Congress passing. One of the most Herculean tasks Congress can do is to pass an amendment to the U.S. Constitution. Rarely happens after the first 10 amendments of the U.S. Constitution. We got other ones later against drinking and prohibition and women's suffrage and all that. But it's very hard and they don't do it lightly. It's not like they wake up one morning and go, let's amend the Constitution. So they amend the Constitution to put in a disqualification clause applying to all future insurrectionists with very distinct language about traitors and insurrectionists who once swore allegiance to the U.S. Constitution.

an amendment to the U.S. Constitution, just a law on the books. How do you think it's even possible for the judge in North Carolina to have found that that law overrode the U.S. Constitution? How did that happen? Well, apparently it's poorly worded is my understanding of the law, that it does leave some room for confusion. But what was interesting about sort of doing our research, one of the things I love about Legal AF and what I love about our podcast is, you read the news and you sort of follow things, but when we prepare, you really sort of dive deep into you read court decisions, you read statutes,

you really sort of look into the things that the news are reporting on. And, you know, the 14th Amendment is something that it has lots of elements to it. And this is only one of the elements. And it's certainly one that I didn't know about or I'd forgotten about. I hadn't really thought about it since law school many decades ago. And this particular provision of the 14th Amendment. But what's so interesting to me is every once in a while, the news takes on certain language, right? And sometimes it has to do with weather. Like they'll talk about a bomb cyclone. That's

like a new term that comes about. And everyone's talking about the bomb cyclone or the polar vortex or whatever. They come up with words. And with the January 6th insurrection, the word that was being used was insurrection. And again, that's just a word. You could call it a riot. You could call it lots of different things. But the word insurrection came about and really became part of everybody's vocabulary. And it's how we all refer to it. And I remember thinking at the time and wondering sort of how did it get that name? How did it get that label? And when you read the 14th Amendment and you look at this particular case and this line of cases, you see why it's exact. First of all,

it is exactly an insurrection, which is defined by the violent uprising against a government. But you see why that language is being used here and why it's being labeled and defined and called what it is, because it absolutely applies to what the 14th Amendment to the Constitution and what was intended to prevent and what that amendment was intended to address was exactly this conduct. So if it was if it wasn't that, this conduct. So if it was if it wasn't that, if it's not if it's not 800 people attacking the Capitol, breaking in, roaming the hallways with a bloodthirst, looking for the Capitol, try not just looking for elected people, trying to stop the peaceful transfer of the president, the president of the United States from one person

to another. You're so you're so right. As a byproduct of their bloodthirst, they were also trying to stop the peaceful transfer of power. And all of them, like Marjorie Taylor Greene, who is the focus of the segment, who said they are patriots just like 1776, and they're just exercising their First Amendment right. You know, there's a line in the sand about how far you can go to challenge the government. I'm all about criticizing the U.S. government if you don't agree with it. That's what the press is for. That's what free speech is for. You want to stand out on a street corner or a social media account, and you want to criticize Biden policy, foreign policy, domestic policy, social policy. You have that right.

It stops. Where does it stop? It stops at an attempted violent overthrow of the government. So I don't know why, well, the former fitness instructor Marjorie Taylor Greene has never been confused with a constitutional scholar. But for her to say, I don't get it. I don't get what the big, she said two days ago,

I don't know if you caught this KFA. She said two days ago, it was just once. She literally said, like Hiroshima was just once, Pearl Harbor was just once, the Holocaust. Well, I mean, the Holocaust was not just once, but she literally said, what's the big deal? It just happened once. This is how their side is trying to reduce what happened and shrink it down so small. The old joke is they can drown it in the bathtub. It's no big deal. It was just a bunch of people. It just got out of hand. It was like a frat party that got out of hand, except it happened on January 6th when they're trying to certify the election and the

electoral count and have Trump declared former president on that day. It's just mind-boggling. But let's focus, let's just wrap it up with Cawthorn versus Marjorie Taylor Greene. Cawthorn goes to federal court, gets a federal judge to rule in his favor, an African-American federal judge, former law professor, and a Trump appointee who I believe misreads the 1872 amnesty law and what it means. The Fourth Circuit finds that very interesting and has decided to have an expedited briefing schedule and an oral argument and hearing about a week or two before the primary. But they didn't vacate or overturn the ruling. So right now, Madison Quathard is printed up and on the ballots, subject to the Fourth, But they didn't vacate or overturn the ruling. So right now, Madison Cawthorn is printed up and on the ballots, subject to the fourth and whatever emergency appeal, if he loses, that he tries.

Marjorie Taylor Greene, I think she's got a little more lead time in Georgia. But Totenberg, any moment now, could be when we're done podcasting, is probably going to rule against her and send it back to the state election board. is probably going to rule against her and send it back to the state election board. And Brad Raffensperger, who's the secretary of state, he of the phone, the infamous Trump phone call, can't we just find five, 15,000, whatever the number was, votes between friends. And so he's in charge of that process. And, you know, it's I don't think it's going to be a good day in Georgia for Marjorie Taylor Greene if the board of elections is allowed to do their job. I think she might get bounced. And then she's going to try a federal appeal to the 11th Circuit, which covers Georgia, and then failing that to the Supreme Court. But I'm not sure how all this

happens in time for the election. What do you think? Does Marjorie Taylor Greene, let's get another KFA prediction. Does Marjorie Taylor Greene ultimately get disqualified from the ballot under the Article 3, 14th Amendment? My prediction is yes. She gets disqualified. Cawthorn doesn't. The circuits disagree. And it goes to the Supreme Court. And it goes in sort of the shadow docket. It goes emergency quickly, just because, as you said, timing-wise, all of this is happening in real time. That's where I see this going. I agree with you. I like that setup. And then it gets to a six to three supermajority right-wing Supreme Court, even with with well, Katonji won't be there. Katonji Brown Jackson won't be there yet. It'll still be Breyer, the last burning embers of Breyer.

I bet it's five to four. I think the chief justice, I think the chief judge, he impresses me with his wanting to maintain the integrity of the Supreme Court. I say he I think he votes. I think he votes with the four. I think he makes it four by four. So they lose, but they lose five, four. Right. And she goes back on about I used to agree with you a lot on the on the Roberts court. I think if he ever really wanted to do public service and he wanted to preserve his legacy at this point, he would resign while Biden is still in office, allowing Biden to pick a replacement for the chief justice. I think his career is in tatters. He's not going to do that. I do believe he really does still care about the integrity of the court and that it has some semblance of just respect. And so that's what I think.

Okay. I hope you're right. We're going to follow. the legal AF happened in the northern hinterland of Michigan in federal court, when a jury listening to three weeks of testimony about four individuals who participated in a plot to kidnap and harm through violent means the governor of Michigan over her COVID policies of all things. How did two walk out the front door free people and two got hung? And we'll talk about the hung jury. What went wrong? I got one thing I want to say before the what went wrong part. Yes, I did not watch three weeks of this trial. There were parts that I was able to follow.

But the jury was presented with evidence that these gentlemen, with two co-conspirators who pled guilty already, who testified against them, bought night vision goggles, built a model of the governor's vacation cabin to practice extracting her from it, right? Bought explosives and practiced with it. And the only reason this whole kidnapping plot was foiled, and this was the testimony, is that the FBI had them meet where they thought they were going to be buying more explosives and military gear to wear, and they got arrested instead. Even if that's just the part that got presented to the jury, how did anybody go free? Karen, what do you think? So this is a huge blow for the federal government. I mean, huge. This is a, you don't recover from this. The prosecutors who tried and lost this case so publicly, they're going to remember this for the rest of time.

It's hard to lose a case, but it's hard to lose a case like this. You look at just everything you just said, but you also just look at the pictures, the photographs of these gentlemen. That alone. There's central casting, scary. It's everything you've ever sort of been,

you know, you're sort of afraid of. But no, to Manhattan people like you and me, but not to a jury of rural northern Michigan. They look like their peers. Perhaps. So this is a this is a blow not just to the individual prosecutors who tried this case, but to the Department of Justice in general. prosecutors who tried this case, but to the Department of Justice in general. They've been trying ever since 9-11 and terrorism, they've really tried to pivot towards what they call domestic terrorism and these sort of domestic terrorism groups. And, you know, they're mostly all white and they're these kind of scary people who want to do bad things. Let's just leave

it at that. And so this is a big test case for them. You know, it had all of the all of their tricks. You know, they infiltrate them. They have FBI agents who are undercover. They photograph it all. They videotape it all. So there's nothing, there's almost no question of fact for the jury in a case like this. Sometimes when you present a case, you have witnesses who testify and they tell you what happened. In a case like this, the government records almost every possible thing so that there is no question of fact. You don't have to rely on, did he say this or did he say that? You can see it for yourselves. And this is sort of the playbook that the government goes by in not just these kinds of

cases, but really almost any long-term investigation. But this was a big blow because this really is going to call into question their methods and how they do things. And to answer your question, sort of what happened, I think here the jury thought that the government was overly aggressive. You know, the defense attorneys in this case used the recordings to their benefit and said, that's proof that this was all led by the FBI. It was proof that this was all coming from them the whole time because they recorded it. They did it. And, you know, the guys, the defendants, they said, look, we're just free speech, you know, First Amendment and Second Amendment, you know, First Amendment, free speech. We just like to blow off steam. We hate the governor. We hate, you know, what she's doing.

We hate mask mandates. We hate COVID. And the wonderful, beautiful First Amendment of the United States of America allows us to not only dislike our government, but to speak loudly and to say as many hate-filled, horrible things as we want about it. And the Second Amendment to our Constitution allows us to have guns and buy guns and all these things that we went and bought. And so, yeah, we like to get drunk, sit by the fire, and shoot our guns up into the air and talk about how much we hate the government. And the, but the really the bottom line is that's all we were doing. And then you have these government informants, whether they're FBI agents or these other turn coats, you know, that are, that are sort of, you know, these guys playing both sides of the aisle,

they're the ones suggesting let's kidnap the governor. Let's, they're the ones suggesting, let's kidnap the governor. Let's, you know, do this. Let's do that. And, you know, half of them, half the evidence was like, well, we didn't even know what we were going to do with her once we got her. And maybe we were going to do this with her, do that with her. And the fact that it didn't have any specifics and the fact that it didn't have any details kind of plays into the defense that we were just talking. We were just kind of fantasizing and

making it all up. And the jury just didn't like it. The jury did not like the government. The fact that a lot of this seemed to have been either suggested by the government or kind of directed by the government. And they kind of smacked him down. You know, plus there were some missteps in the in the investigation as well. And a couple of the FBI agents got into some trouble. One got arrested for domestic violence and another one was trying to use this to start a business and moonlighting on the side. Exactly. Exactly.

So all of that comes out at trial. And at the end of the day, the government still has to prove beyond a reasonable doubt. You still have to prove your case beyond a reasonable doubt. And your evidence has to have integrity. It has to have, you know, has to be trustworthy. And sometimes the jury didn't necessarily find them innocent, but the jury found them that found that they were not guilty beyond a reasonable doubt. I can't I can't say beyond a reasonable doubt. I can't say beyond a reasonable

doubt that it wasn't the FBI agent's idea or suggestion or I'm not going to reward the government for putting on testimony and evidence of informants that are compromised or FBI agents that are less than perfect. Do I agree with this? No. Am I disappointed? Incredibly disappointed. If I were the prosecutor in this case, I'm devastated on their behalf, but I think that's what happened. They have another shot, right? They have two. If they take it, I mean. Well, let me back up. Let me ask you a couple of questions. One, we had talked about this case and all of the problems with the informants and the co-conspirators, and there being a little bit hair on the dog,

hair on the dog related to them, even before they testified. We had seen this in the pre-trial motions that were filed. And we spoke about, this is a complicated case to present because of these things. So here's one question I have for you. And to dovetail on that or to pick up on that, one of the quotes from one of the defense attorneys, of course, being very happy, he said, I don't think the jury understood all of it, but they got enough of it to realize basically that my clients had been framed. I mean, this is

what he basically said, I guess. So that suggests to me that the government overcomplicated the presentation of the evidence that the jury then, because the issues were so complicated and the competing evidence and cross-examination was so confusing that they latched onto things that human nature latches onto, which is the human quality of it. Who did they like? Who didn't they like? I think they did not like the informants. I think they did not like the FBI people at all. Whatever the defense did, they did it masterfully. And they liked, you know, I hate to say it, but they like these goofballs as they reduce them down to. The only one that testified against his own interest, against his Fifth Amendment privilege, he walked

out the front door. So he's the one that testified. He went scot-free, just bye-bye, which suggests to me that. But here's a question for you. You've got four of them plus two co-conspirators who pled guilty that are testifying against them, plus some cooperating and some CIs, confidential informants and all that. Do you have to put the whole case on against all four at the same time? And why did they, why didn't they just do it one at a time, use one as a bellwether to figure out their case a little bit better, and then try? Why try all four? Do you think that was a mistake?

In hindsight, it probably was. I mean, they indicted them all together, probably thinking it's the same evidence. It's the same. You know, if it's all wrapped up in the same evidence and the same testimony and the same everything, every time you testify, you're creating another, every time you have a trial, you're creating if it's the same evidence that's going to be presented against all of them, they have similar charges, they have similar commonality in the evidence being presented. I would have actually indicted them together. I can't. I mean, like I said, looking back, perhaps you would have you would not have.

But at the time, it made all the sense in the world. And I would have made that same choice. Um, then they became by extension, the Michigan four, like the Chicago seven. And then they got their fan base and people that are like, he looks like my brother-in-law and, you know, all that in jury selection. But I think the jury was overwhelmingly, um, white, you know, just like them. I think if the case was tried maybe in another region of Michigan that didn't have such hard feelings about the governor, you know, and I feel sorry for Whitmer. She had some very tragic comments afterwards, like, why am I even governor? Why am I even doing this?

You know, it was some soul searching on her part, not to be vindicated. And I mean, she wasn't on trial, but not to be vindicated that, you know, and I, and I hate to think that there's a, a female component to this. I mean, if a male governor, there was a plot to kidnap a male governor with explosives and, and, and all this other stuff,, you know, she's not well liked among big pockets of Michigan. And I think being a female is not helping her in being liked there. I'm hoping that didn't play into the jury. I'd like to see the jury composition before I make a further comment about it. Yes. Interesting. Yeah, it's interesting. I mean, so, you know, it'll just it'll just be very interesting to see if they choose to retry the two because, you know, it'll just, it'll just be very interesting to see if they choose to retry the two.

Cause you know, they were, the two that were left were hung. Some of the charges were hung and some of the charges were acquitted. So it'll be a much streamlined, much more streamlined, more simple, simplified case. And let's see if they'll, if they'll try it again. Now, here's a question. The ones that tried the case and lost, how soon after that do they leave the office? They might want to try them again. You know, it's look, this is, as I say to the thing about being a trial lawyer is, is somebody comes in second, 100% of the time, right? So, and it hurts and it's a blow, no matter which side you're on, it's hard,

but that's the profession we've chosen. And you gotta pick up your crayons and go back and you gotta do your next one. It's hard though, it's a blow, it's a big blow. Yeah, yeah. It's a big blow for the credibility of the office and a big blow for the governor. I mean, does it send the signal that if you're a militia person and you're just shooting the shit in the backyard, even if it reaches the point

of being a plot against the government, that you might have a shot at going to trial and being acquitted? You know, it's interesting. Unfortunately, that is the unintended consequence of these verdicts, because I think historically, and this is mostly anecdotal, but I think historically, juries do not like when the government overreaches. They don't, the entrapment, if there is a whiff of entrapment,

juries don't like it. I think that's what happened here, right? Yeah, even if it's not legal entrapment, if there is a whiff of entrapment, juries don't like it. I think that's what happened here, right? Yeah, even if it's not legal entrapment, even if you, you know, juries don't like when you've got, you know, what they would consider just your average person who's living their life and, you know, and they're just, they're not looking to commit a crime.

They're not looking to do anything wrong. And you've got the government come along and sort of suggest things. And yes, you're, you know, anyone could come along and suggest things to me. I'm not going to fall for it, but, but you could see people who aren't, who aren't me and who aren't you, who might be more vulnerable to suggestion. And as soon as they get led down that path by someone who is in the government, juries do not like that. And you got to be really careful. And they punish. And that's what the jury did here. Yep.

Yeah. And to use your phrase, thank God there are people that are not you and not me, because without them, we wouldn't have a podcast. So I'm glad this was like an accelerated version. We were leaving a little time for our interview, but I'm glad that we were able to cover three really interesting topics. I think one of the takeaways from reading the live chat that you're always on with me and with Ben Mysalis, the co-anchor and founder of the show with me on the weekends, the co-anchor and founder of the show with me on the weekends. My takeaway from that and the Twitter feeds and all is that in a way that I hadn't anticipated before is that people really find what we do, what we do on the show with Ben and what did I do on the weekend to be an

important part of their lives because they were hearing about these concepts and they're sort of floating around in the transom of their mind. But in their view, nobody was taking the time to explain it to them in a way that fit and made sense the way that the three of us are able to do. And I didn't know that when I signed up for this gig that it was going to turn out to be that, but I'm so honored to be a part of it. And I know you are too. I can just tell by the way you participate, you know, so dutifully on the Wednesday and Saturday live chats and everyone's, and you have, I know you are shy about it because, you know, you think from an egotistical standpoint, it shouldn't be you. So it wasn't you. I saw it and I said it. So I've got Papakians and you have K fans. How is that not perfect?

And how do we not think of that? It's so good. Can we talk about the Texas Heartbeat Act, please? Are we? More? No. I thought we were talking about the... I'll do whatever you want. What do you want to talk about?

Star County. We did. Didn't we? No. I'll do whatever you want. What do you want to talk about? Star County. And the poor woman. We did. Didn't we? No. We're doing the third one now? Salty, get ready for an edit. We did Marjorie Taylor Greene.

Oh, you're right. You're making me question. Oh, we did the intro. We did the intro. You're making me second guess myself. Here we go. You ready? I got very excited.

Two down. This is like when Tom Brady, we should leave this in the pot. This is like when Tom Brady thought it was fourth down and it was third down and he trotted off the field. Like, all right, guys, thank you. They're like, no, it's not. It's third down. Same thing. I thought we did this story. All right, here we go. I don't think you,

I don't think you edit it out. We're real people. We make mistakes. Okay. Let's go to the third topic. I'm not pretending to be anything that I'm not. It stays in the pod. You know, Salty will appreciate it. It's less editing. Okay. So here's the third topic for third segment for tonight that I, Popak, thought we'd already covered because I did it in the intro. We're going to talk about this. Now I have to change my whole demeanor

because the story is serious. So we have Lizette Herrera, a young woman in Texas by the border of Texas and Mexico who went to a hospital after using abortion pills and had a negative reaction to them because she wanted to terminate an unwanted pregnancy. And she lives in the handmaid's tale state of Texas

with its six-week prohibition on abortion and a U.S. Supreme Court that has refused to stay SB8 and its bounty laws until it makes its decision, I guess, in the summer in Jackson versus Mississippi about Mississippi's 15 week law. And we'll have to just sit on the edge of our seats and fill in the blank of everything else until the Supreme Court, none of which are having any more children, decides reproductive rights in America. Same, by the way. I said same, by the way. Stays in the pod. Okay. Now, so we have poor Lizette Herrera, who goes to a medical professional, public health professional. This is the setup for this. It's going to get Karen and me, our dander up because she's got a medical condition and the hospital reports her to the sheriff's office because she's because for murder or reports her that she used abortion pills to end her own pregnancy, which I will tell everybody. I didn't know this before, but even Texas's own criminal law, its own penal law does not criminalize the mother of an unborn child terminating a pregnancy.

But that didn't stop the sheriff issuing an indictment to indict her for causing the death of an individual by self-induced abortion, better known as murder. Let's leave it at that. So it then goes to the local prosecutor in Stark County, Gocha Allen Ramirez, who takes one looks at the facts. And what does she do? Former prosecutor KFA. So I have very mixed feelings about this prosecutor. I am going to hold my judgment until I think that the D.A. Gocha Ramirez of Starr County is going to file a motion to dismiss, I think, on Monday. I'd like to see what that motion says. And until then, I'm not ready to say that the D.A. is wearing a cape here. And all right. Tell me why. What have you read? What have you heard?

So so the D.A. did dismiss the case and issued a statement saying, you know, basically protecting, you know, coming out and saying that don't get mad at the sheriff. The sheriff did what they were supposed to do. They have a duty to investigate. But I have prosecutorial discretion. The D.A. has taken an oath to do. They have a duty to investigate, but I have prosecutorial discretion. The DA has taken an oath to do justice and this has taken a toll. So I'm not going to prosecute this case as if, as if this DA is, you know, is, is, is wearing a cape as, as you suggested. But I want to see what the DA actually has to say, because the DA here, first of all, is not used. Prosecutorial discretion is what a lot of DAs use when they choose not to bring a case because it's unfair or it's unjust. In other words, it's technically illegal, but I'm not going to bring the case. I'm going to use my discretion, which is something every prosecutor in this country has, because in the interest of

justice or for some other reason, I don't think this case should be brought. This case, this DA dismissed this case because this DA had to dismiss this case. Why? Because there is no crime of murder for a self-managed abortion in this matter. And so this even in Texas, that's not a crime, even in Texas. So in fact, the law in Texas actually exempts people from being criminally charged. This is a civil matter. So, you know, the other question is, I think this this D.A. charged her and then is dismissing it, moving to dismiss it. Why did this DA charge it in the first place? So let's see.

There's a little bit of a kind of, first of all, the DA didn't come out and criticize the law, didn't criticize the hospital, didn't say the hospital, you're violating federal and state HIPAA laws and doctor patient privilege. And it's not a crime. What happened to the Hippocratic oath? I go in, I mean, I don't know, you're the prosecutor on this team. I go in with a gunshot wound. The first thing that the hospital does is report me to the police for a possible crime while they're treating me. Are they obligated to do that? Yes.

So, well, all right. No, I want to take it. It depends. It depends. So let's look, let me, let me give you a couple of, of, um, examples of where they're obligated to call the police. So that's helpful to our followers. Yeah. So, so first of all, let's just start with a premise.

You don't, you want, you want to encourage people to seek treatment, right? You want to encourage people to- Good premise. Right. So you want to encourage people to seek medical treatment and to speak freely to your doctor. So that's what these privileges and these laws and these privacy laws are designed to protect. It's designed to go in and say, yes, I took this drug and, you know, I'm dying at this moment and it might be an illegal drug, but at least now they'll know what to treat you with because you were honest about it, you know, or yes, I did X, Y, and Z. So it's designed for open communication, but there still are certain things that doctors

and hospitals are required to report. So, for example, if you go in and they're in the middle of cutting your clothes so that they can open you up, they find a gun in your pocket, or they find illegal drugs in your pocket. They will have to call the police who will have to come and take that. Or say if there's suspected child abuse, you know, in those types of instances, they are required to, they're called mandatory reporters. So there are certain instances that doctors are required to call the police. But in this particular instance, I don't see it even coming close. And if this DA wanted to,

this DA could have really called out the hospitals and said, this is not what the law says, this is not illegal, it is not a crime, and this DA is not saying that. So let me, that's just the kind of nuanced approach and analysis that I've come to love with you as my co-host. Because when we were texting each other leading up to the show, like a few days ago, we saw the headline, we were like, good, great, just what should have been done. And then when you really get under the hood and that's, that's,

that's what our people come to love about the show. So just to motion to dismiss says maybe, maybe I'll say good. It's a good, you know, maybe this is just the next week, the press release. But just, just to lay out three, three, three last points here, penal code title five, chapter 19 of the Texas penal code under criminal homicide, Chapter 19 of the Texas Penal Code, under criminal homicide, Section 19.06 says expressly that it is not applicable, it is not criminal homicide, to cause the death of an unborn child if committed by the mother. So that is the criminal code in Texas. So there's no crime.

Even SB8, as diabolical and immoral as it is, does not penalize the mother of the child, the abortion provider, yes. Others that assist and facilitate, yes. But not the mother. others that assist and facilitate yes but not the mother so what is the law when when the sheriff typed up his indictment that's how it worked here apparently typed up his indictment and put murder unborn human whatever they wrote what did they i like to see that what did they cite as the criminal violation the criminal statute it sounds like te like Texas is just in a lather over abortion and like the hospital calls the sheriff, the sheriff swings down.

And all you have is this poor 23-year-old woman who's just going to the hospital because she lawfully took abortion drugs that had an adverse impact. And she's like bleeding. That's not a crime. So you're right. I thought when I first read everything, but you've really, you've really framed it properly for us to watch the next steps.

And we'll be able to report that back next, hopefully next Wednesday or so on the next edition of legal AF. Have we covered all of our segments? Yes, we have. We have covered them. We have come to the end. Go ahead, Karen. No, no. I just wanted to say one other thing, which is I've learned for granted things like the ability to, you know, freedom of, you know, freedom of to love, to marry who you want, to love who you want, to have whatever identity you want to have, to have an abortion if you want to, you know, there's so many freedoms that you take for granted by living in New York. And, you know, what's really happening is,

and this case, I think really shows it because as you were saying, you've got it. You've got a sheriff who clearly wants to punish women for for having an abortion. And I think a D.A. who doesn't think it's crazy, you know, who doesn't think it's insane. I think what we're seeing here is, you know, at the end of the day, in a couple of months, the Supreme Court is going to take up, you know, is going to take up this question in Dobbs versus Jackson, the Jackson Women's Health, and either they're going to overturn Roe versus Wade, or, you know, they're going to allow the ban to stand, you know, in that particular case and push this back down to the states. And you're going to see, and what's happening is you've got states. I think I read somewhere that there have been over 500 restrictions that have been introduced in 41 states since in anticipation of the Supreme Court ruling in 90 days.

Because they're getting ready. They're getting ready for the Supreme Court to say to push it down to the states. And I think we're going to live in a world where half the states you can have an abortion and half the states you can't. And it's a race to the bottom. You know, it's a race to the bottom. Oklahoma wants to one up Texas. You know, I feel like we're playing a perverse game of name that tune. You say six weeks. We say zero weeks. Oklahoma's going to ban outright abortion. And then you've got states who are you know, you've got some states that left

abortion on the, like it was illegal to have an abortion and they left it on the books because Roe versus Wade said you have a right to have a constitutional right. So they just left it on the books and it was never enforced. So you've got some states that if Roe is overturned, they'll just revert back to these laws that are on the,

these ancient laws that are on the books. So you've got some states that are getting them off the books, right? The progressive states are saying, let's get this off the books, you know, and then you've got other states that are reverting to that. And then you've got some states who don't, don't have it on the books and they're introducing new laws. It's going to be 27 to 23. So it's going to be like 27 states are going to allow abortion. 23 states aren't and all the ones we can name right now. And then you're going to have, it looks like the private sector, some companies at great risk to them and their brand have stepped forward already and said they will pay the freight for their employees

to fly to the state that's necessary to have the abortion. Big companies. Yeah, there's going to be a whole cottage industry that pops up, I think, where Planned Parenthood is going to pivot to and other organizations are going to pivot to a model where they transport women to states. You know, there's going to be a whole cottage industry. I almost said abortion tourism, but that's a terrible phrase. Yeah. No, but it's a reality, right?

It's a reality. You know, abortion, the one thing we've, if we have to learn from history, the one thing you're going to learn, we can learn, whether it was coat hangers, you know, that they used to use, or now it's, you know, it's these, these, these abortion pills, people who want to have an abortion, aren't going to stop having an abortion. You know, if it's an unwanted pregnancy, it's an unwanted pregnancy, and you're not going to stop people from doing it just because it's illegal. So either you provide safe passage for them to go to a state where they can do it, or you're going to create a situation where women are going to have serious, significant health consequences because they don't seek proper medical care or medical attention for fear of prosecution or civil action or retribution or whatever happens. And people should read, you know, the original Roe versus Wade and all of its progeny, which gives you the parade of horribles and the litany of reasons, terrible, terrible reasons

why medically safe, properly provided, government regulated abortions is the best alternative to letting people go into back alleys or illegal abortionists. You think people are out there giving without medical license, like Botox and operations in their garage? Wait till you see what happens when 27 states or whatever it is are going to ban abortion. Have you read the book or watched The Handmaid's Tale? Well, I was fortunate that when The Handmaid's Tale first came out and they made the first movie about The Handmaid's Tale back in the 1990s, they filmed part of it at Duke while I was

at law school. So I got to watch. Now at the time, it wasn't what it became with the Hulu series. Is it Hulu? The Hulu series of The Handmaid's Tale, the original movie, which was not that popular, but I thought it was well done. I got to read the book then because it literally was on our campus filming back in 1990, 1989. So yeah, I've read the book. Yes, I read the book when it came out. And, you know, at the time, it just seemed like one of these, you know. Dystopian. Yeah, exactly. It's just like, that's just whatever.

Why is my teacher making me read this? But it was good, but it was just seemed so, so foreign. And then when the, I think it's, is it Netflix or Hulu or whatever it is, when the series came out, I started watching it and it's been a couple of years now. And it's phenomenal. I mean, absolutely phenomenal. It still seemed far-fetched and crazy. And as time has progressed, our country has moved closer and closer to the scenario depicted in The Handmaid's Tale. And it is terrifying.

It is utterly terrifying. I've talked about in the past and we'll sort of end it on this one um you know this is you know uh truth is stranger than fiction and art imitating life and life imitating art one of the reasons it's been reported that um julia louis dreyfus ended veep after seven seasons after is because Trump got in, all of their storylines, which seemed just slightly askew and far-fetched, this is before the insurrection, just lost its resonance with the American people culturally because they had sort of a whack job in Trump in the office. And so it lost its sort of meaning. She says,

we couldn't outdo what was already being done in real time in the White House. It was no longer funny fiction. Yeah. And she and they literally ended about a year or two later earlier than they wanted to, which I hated because I really liked the show. And The Handmaid's Tale is the opposite. It's getting deeper resonance with the American people because it's terrifying. It's terrifying. It's terrifying. It's terrifying. It's terrible. The whole thing's there. There's, there's one more thing I will say about the handmaid's tale and then we can end. But by the way, when we first started talking about this midweek edition, we were like, Oh, we'll do 20 minutes. And then we're like, maybe we'll do 25

minutes. Now we're encroaching on the weekend, sort of stretch it longer than we have to. I know, but really, really quick. There's one, one more thing about the handmaid's tale um there was a scene that i found so profound where it was the it was the end of one of the the seasons i can't remember which one and somebody escapes to canada and canada is this wonderful place you know and and where they're receiving where they're receiving these refugees, right, who who are political asylum seekers in Canada. And what it was welcome to Canada. Here's some medical care that you will have. Here's some money that you can have for until you get on your feet. Here's therapy. Here's housing. Here's food. Here's a hug. Here's everything like and I had chills and was crying. And I was like yeah this is how we have to treat people who are coming to this country who are fleeing oppression and fleeing these horrific

situations and and I know I'm I'm I'm looking at you know at at a television show to say you know but but in that show when you're when you're you're feeling the feeling of those characters who are fleeing this oppressive situation and you see how you're feeling the feeling of those characters who are fleeing this oppressive situation, you see how they're just being sort of embraced and rescued by this welcoming country. It really hit home that that's how we have to be treating people at the border. And the way we lock them up and send them back and how we treat them is really shameful. And I hope we do a whole segment on that at some point when it's appropriate.

Yeah, let's do it. Let's do it about our undignified immigration policy and border policies that are still left over from the Trump days. And Biden perhaps not moving fast enough to change them and make them progressive and reflective of our society. I'll give a personal example of what you're talking about. We can either treat people terribly in the immigration process and make them not long to be American citizens and have them hide in the shadows and operate there. Or we could treat them with dignity

and let them the way my great grandparents came to this country in 1900, my grandfather in 1908, and even my girlfriend, who when you compare what happened to her immigration experience to all the horror stories, and I see the difference. When was the last time you went to a baseball game or a sporting event and they played the national anthem and you cried? My girlfriend cries at the national anthem, although she's only been a US citizen for eight years because she literally won the green card lottery. She was sitting in her home country. She got on a computer, filled out a form, and she won. And she is so in love with this country and so patriotic and thankful for being here, just like my grandparents, just like my great-grandparents.

And what are we doing to everybody else who's not lucky enough to win the green card lottery and who's black and brown and isn't from a predominantly white country? It's not good. It's shameful. We will. I'll take you up on it. We'll talk about it at another podcast. But tonight, we've ended. Finally, I think. We did all three, didn't we? Good. You know, I'm older than you are. You got to keep an eye on me. I may wander off one day

during the podcast. But I was second guessing myself. I'm like, did we do it and I forgot? Oh my God. I inadvertently gaslighted you. Karen, we did it. We did it already. All right. But keep an eye on me. If I start wandering off, like, where's grandpa going? Bring me back and let me finish the podcast with you. And we will see, a shout out to the Legal AFers, to the Popakians, to the Midas Mighty, to the Kay fans. And we will see you next Wednesday right here. So, so long from Michael Popak and... KFA, Karen Friedman Agnifilo.

Great to see you. All right, you too. We'll see you next week.