Legal AF by MeidasTouch - MasterClass LAF style—Kidnapping, entrapment, criminal cross and special grand juries

Episode Date: January 27, 2022

LegalAF x MeidasTouch, the top-rated weekend global news podcast covering US law and politics anchored by Ben Meiselas and Michael Popok, has launched a special weekly Wednesday short-form edition providing a piercing but entertaining look a few topics ripped from today’s headlines. The midweek pod is co-anchored by veteran prosecutor, policy analyst and defense counsel, Karen Friedman Agnifilo (“KFA”), and national trial attorney and strategist, Michael Popok (“Popok”). On this midweek episode, Popok and KFA tackle: (1) Last week’s SCOTUS decision in Hemphill v. New York making a criminal defendant’s cross-examination rights under the 6th Amendment’s “Confrontation Clause” more robust; (2) the plot to kidnap Michigan’s Governor Whitmer, the use of undercover agents and informants, and the entrapment defense; and (3) Fulton County, Georgia (Atlanta) DA Willis has a new and approved Special Grand Jury to assist her investigation of possible election fraud by Trump and others, and what it all means. Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to Legal AF Wednesdays with your midweek anchors. I'm Michael Popock. I'm Karen Friedman Agnifilo. KFA, this is going to be awesome. We're doing episode number two. And during this midweek edition of Legal AF, KFA and I will drill down on a small handful of legal, political, and constitutional topics in digestible form to continue your podcasting legal education. And on today's pod, KFA and I will tackle, first, last week's U.S. Supreme Court decision making new law concerning a criminal defendant's fundamental constitutional right to confront his or her accuser, the Sixth Amendment Confrontation Clause,

in a case called Hemphill v. New York. This will give KFA a great opportunity on the pod to flex her former lead prosecutor chops as we unpack what happened and what it means for the future. We next turn to the plot to kidnap Governor Whitmer of Michigan, the use of undercover informants, the prosecution of the criminal defendants that starts in March, and the defense's attempted use of the entrapment affirmative defense. And finally, we'll cover Fawnie Willis, the Fulton County, Atlanta, Georgia district attorney, and her use of a new and approved special grand jury to continue to investigate and possibly indict Donald Trump for unlawful election interference. But before we launch right in, and we're launching to keep this at 30 minutes, we received a ton of positive and

encouraging comments during the live pod recording last week and even after it dropped. What did you think about all that, KFA? Well, I'm glad you cleared up the fact that your painting is actually level by posting the level. I mean, it was hilarious to me that you guys were covered in, I think, 12 different topics over the course of two hours. And there was a lot of talk of your beautiful painting and whether or not it's level, but I'm glad we got that straight. Thank God. It was great. I think people also noticed that I have a very small Twitter following and I appreciate that they noticed, but I just joined Twitter last week. So I'm very new and I'm just getting my sea legs. Yeah, literally, when you and I were in the planning stages for Legal AF Wednesdays, we looked at our social media accounts.

And trust me, when I started, I did not have up to 15,000 followers. And our Legal AF Twitter account didn't even exist. So listen, we're all doing great. And the support of the Midas Mighty and the legal AFers out there has been overwhelming and motivates you and I to keep going. So let's launch right in. The case we're going to talk about first, and we're going to use it as a teaching moment, about the Sixth Amendment cross-examination, the right to confront your accusers under the U.S. Constitution in a case that procedurally

was very interesting. It arose from a New York state case called Hemphill v. New York, which just came down as an eight-to-one decision, the majority written by Judge Sotomayor, finding that the confrontation clause was violated in that particular case and establishing what I think is at least a new and improved and muscular cross-examination right for criminal defendants based on the ruling in the case. But let's start out with the case itself. I'll give a little bit of the how we got here procedure, and then I'm going to turn it over to KFA to talk about it from a former prosecutor standpoint. The one thing that's very interesting to our legal AFers, I believe, is that the case started in the state court proceedings. We spend

a lot of time on legal AF talking about state versus federal. Here we have both. There was a state criminal prosecution in Bronx, one of the boroughs of New York, in our Supreme Court, which is our trial level court, notwithstanding its name, there was a conviction of Mr. Hemphill for the murder of a two-year-old in the firing of a weapon on Easter Sunday in 2006, a tragedy, a real tragedy. A lot of times these criminal cases have terrible, terrible facts to make good law in the area of defendant rights and constitutional rights. But the facts are really heartbreaking and heart-wrenching. The case starts in New York Supreme in the Bronx. He's convicted. It goes to the first level of appeal in the state court system, which is the appellate division, first department, which in New York covers New York,

which is where, of course, both KFA and I practice, and the Bronx. The two of the boroughs are in the First Department. And he lost there. And then went to the highest court in New York, which is the Court of Appeals, not the Supreme Court, but the Court of Appeals, and he loses again. So all hope is basically lost for Mr. Hemphill, who now is spending upwards of seven and eight years in jail for this crime. for Mr. Hemphill, who now is spending upwards of seven and eight years in jail for this crime. It then goes to the Supreme Court of the United States because there is a federal constitutional right that has been violated, at least the Mr. Hemphill's argument, that needs to be addressed at the federal level, at the highest level of the U.S. Supreme Court. So it's one of those rare

instances that from a state court, entirely state court proceeding, we then have the court of last resort being the U.S. Supreme Court, and they rule finally in Mr. Hemphill's favor. But KFA, why don't you walk through sort of what happened in the case and the issue of cross-examination and confrontation of the Sixth Amendment? Sure. So interestingly, in this tragic case, as you said, it was a shooting on the streets of the Bronx on Easter Sunday. And this was a case where there was a shootout on the street between two individuals and a stray bullet shot and killed this little child. And they arrested an individual named Nicholas Morris at first, and they executed a search warrant in his home and recovered shell casings and other evidence of a nine millimeter weapon, a gun and a 357, which is another type of gun.

And the shooting here, they could tell from the ballistics at the scene, was a 9mm gun. Also, the other person involved in the shooting was described as having a blue shirt or a blue sweater. And in that search warrant execution, they also recovered what looked like the sweater or shirt that was described in this shooting. And they end up prosecuting Nicholas Morris and going to trial against him. And in the middle of the trial, they discovered that he had a lock solid alibi and the, they dismissed the case against him and he pled guilty to possessing the other

gun, which was the three 57. Correct. So let's stop, let's stop there. Just as we're keeping track of all of these new facts for our audience, the nine millimeter is what kills the child. The, the potential, the, the, the person who's being potentially accused of the crime, the first person, not Hemphill, is convicted or pleads to a 357 weapon charge. He did what every criminal defendant in this country does when they plead guilty, which is they allocute during their plea. What is that, allocution? So a plea allocution is when they, normally when they go before a court, they enter a plea of not guilty. And then when they plead guilty, they change their plea to guilty. And

they say the judge asks a bunch of questions are and the judge asks a bunch of questions to determine, is the person in fact guilty? Are they of sound mind? Are they not on any drugs or experiencing some sort of mental health issue? I mean, are they are they OK to plead guilty? Do they understand what's happening? And then the- Prosecutor hasn't made any promises independent from what the court is aware of, right? Yeah, exactly. So a plea allocution is the record that is taken down by a stenographer in court where the person admits to the facts of the crime with which they are pleading to. So there was a plea allocution by Mr. Morris in this

particular case. Now, fast forward a couple of years go by, and the DNA technology catches up with evidence, and they test the blue sweater finally, and the DNA comes back and matches with Daryl Hemphill. That's how he gets prosecuted for his case in this matter that you described in the Bronx and went to trial and was convicted. His theory of the case was, it wasn't me. It was Mr. Morris. It was somebody else. I didn't do it. In fact, you should hear what Mr. Morris had to say.

You know, you should, I want to bring out sort of what he had to say. And however, as you talked about before, there's something called the Confrontation Clause of the Sixth Amendment. So there's the Constitution of the United States of America, as everybody knows. And then there's the Bill of Rights, which is an amended part of the Constitution of the United States of America, as everybody knows, and then there's the Bill of Rights, which is an amended part of the Constitution that has certain enumerated rights that apply to all of us here in this country. And one of them is the Sixth Amendment. And what the purpose of the Confrontation Clause was so that when somebody accuses you of a crime, you have a right to hear them in person and to ask them questions, to essentially confront your witnesses and the witnesses against you. It's a criminal defendant's right in this country.

And before you move on, and it comes from the founding of the United States and what the founding fathers embedded in the constitution by way of the bill of rights. And that's why it's called the, why you and I call it and others in our business, the confrontation clause. Mr. Hempel, was arguing that Mr. Morris was the shooter, the actual shooter and the one actually guilty. And the prosecution said, no, you're misleading the jury by saying that Mr. Morris didn't do it. Mr. Morris even pled guilty to doing something else, to possessing a different gun. And so they sought, the prosecution sought to enter into evidence the plea allocution, which is an under oath statement on the record of Mr. Morris, where he admitted to possessing this gun to show the jury, no, Mr. Hemphill's wrong,

and he's misleading you. He's trying to mislead you. And the judge allowed that in, in this case. And the judge said, okay, because Mr. Morris was unavailable, I think he was out of the country at the time. Yeah, he was literally not in the country. Yeah, so he met the unavailability prong. However, it was clearly something called testimonial evidence. Now, the confrontation clause specifically says you have a right to confront your accusers, but what exactly does that mean has been interpreted over time. does that mean has been interpreted over time. And for the longest time, it was a case called Ohio versus Roberts, which was a Supreme Court case that said, if a witness is unavailable, and you can otherwise prove that their statements were reliable, then you can admit these uncross-examined out-of-court statements in your case if you are a prosecutor. So a hearsay statement that otherwise has indicia of reliability, even in a criminal case, could be admitted?

How does that square with the Sixth Amendment right to confront your accuser? Well, so that's what the Crawford court said in 2004, which by the way, was before this case. So Crawford v. Washington was decided by the Supreme Court of the United States in 2004. If you remember, this murder was in 2006. So Crawford had already been decided, which I'll explain to you what Crawford said in a minute. But I found it very interesting that despite Crawford and despite the limitations in Crawford, that the appellate, that this gentleman, Mr. Hemphill, lost on appeal twice. And the Supreme Court in this case said, no, it absolutely violates his right to confront witnesses. And so what Crawford said was basically

overruled Ohio versus Roberts and said, no longer is there a reliability test that you can rely upon. It really is, if it's testimonial evidence, if it was evidence, if it was a statement made to be testimony, that cannot come in, even if it's reliable, even if the person is unavailable. way they sort of have described and the best way to understand what's testimonial and what's not is, let's say I just saw somebody stab somebody. And I see a police officer and I turn and I say, he went that way. He's right there. He's wearing a red shirt and a blue hat and purple shoes, and he's right there. Go get him. I'm saying that to help the police in an emergency. And let's say I disappear and they can't find me. That is not testimonial because I didn't make the statement in order for someone to be prosecuted. I made the statement in order to help the police in an emergency. So, the Crawford Court would allow that in. However, if I were to then go down to the precinct and they would take a formal statement from me where they ask me, okay, what did you see? What did he look like? Where were you? Et cetera. That is a statement that they would call

testimonial because it was made for the purpose of potentially prosecuting someone. So, that is a statement that they would call testimonial because it was made for the purpose of potentially prosecuting someone. So that would not be allowed in. So that's how that's how that has been, how that's been described. So let's move to the heart of the decision by Justice Sotomayor and the decision on appeal, which had to do with a concept that you and I know well in different contexts, criminal contexts, which is opening the door or door opening, which to frame it for our listeners is there may be barriers to certain types of evidence coming in before a jury. Some of those are ruled on by the court in motions in limine, limitation motions that are filed in advance because the defense or the prosecution doesn't want to have and believes it has the

right not to have certain evidence brought before the jury because it's prejudicial, because it's not reasonable or reliable and other reasons. And those rulings can obtain and things like the U.S. Constitution prevent certain other types of evidence being provided or presented to the jury. But at some point in the trial, by accident, usually not intentionally, a lawyer can what's called open the door, meaning you weren't supposed to bring up that topic. You weren't supposed to bring up that piece of evidence, but you've opened the door, counselor.

And now the other side, in this case, the prosecution can walk in and present countervailing evidence to prove the point. I handle matters like that on my civil practice a lot where the other side sort of goofs and I take full advantage of it because I'm like, aha, that was a lot, where the other side sort of goofs and I take full advantage of it because I'm like, aha, that was a piece of evidence that was not supposed to come in. But they've opened the door, Your Honor, and the judge says, have at it, Mr. Popock, go bring that evidence in. Here, we have to be more circumspect because under the confrontation clause, the bedrock principle of the Constitution in our criminal process, door opening takes on a different quality. So the prosecution argued, yes, Your Honor, it may have been testimonial. This is to the Supreme Court.

And it may have been, you know, there might have been a right to cross-examine. But he opened the door by arguing this BS theory of there could have been another shooter or that he shot him, not me. And the judge was right to make a decision, basically taking it away from the jury, to make a decision to allow in this evidence to be read, the plea allocution for the missing person to be read into the record. And Sotomayor, of course, addresses door opening. And what does she say about that, KFA?

addresses door opening. And what does she say about that, KFA? She says that opening the door, this concept, this term of art that you just described, does not apply because that's procedural and this is constitutional. And what she said is, yes, judges have lots of leeway to conduct their courtroom in a certain way. And they can, there are limits. So, for example, you have a, you have a right to confront your witnesses and to cross-examine them, but judges can limit that, right? Judges, if something becomes repetitive or if it's been asked and answered, or if it's not relevant to what's, what's happened to, to the crime, or if it's overly prejudicial. There are things that judges can do that are considered procedural. And that's what the government was trying to argue

that this was in this case, that opening the door was not procedural, was procedural, sorry. And what Judge Sotomayor said was, this is constitutional and you can't, the constitution does not allow you to open the door to violate, to have the right, this bedrock right violated as you described. And here's what she said. She says here, it was not for the trial judge to determine whether Hemp Hill's theory that Morris was the shooter was unreliable, incredible, or otherwise misleading

in light of the state's proffered uncontroverted plea evidence, nor whether this evidence was reasonably necessary to correct that misleading impression. That is for the jury. That is through confrontation and adversarial process of a cross-examination of a key witness here. Now, because I want to move on to our other two topics, there's just one question I want to ask you. It has to do with cross-examination in criminal proceedings. I think that'll be interesting to our listeners and followers because it is quite different than in a civil setting where you and I do other types of trial work.

In a civil setting, for instance, I've already had the luxury of deposing, taking a deposition of the witness under oath for maybe seven hours of them in federal court, longer if I'm in state court. I have a transcript, I have a record. And when I prepare for trial and to cross-examine that same witness at trial, I can invest hours and hours and hours almost memorizing the person's testimony and actually putting little side tabs next to

pages in case they deviate from their testimony and I'm able to do what's called impeachment in my cross examination. That's the civil process. In the criminal process, you're now a defense lawyer. Do you get that type of process of depositions or how much time do you have between learning there's going to be a witness for the state and the time you have to cross-examine. What is that interval like? It's very different, at least in New York. There are certain states, I believe Florida is one where there are criminal depositions prior to trial, but in New York. In state, yeah, but not in federal. In state court, correct. So every state is different, in my understanding, is every state is different and has different types of procedures in a criminal matter. And New York is really one of the more restrictive, from a defense perspective, states. It changed in 2019.

There was a huge reform, a huge statutory reform scheme that provided discovery to defense attorneys much earlier. It used to be prior to this reform, it used to be that you would only get discovery, meaning notes that somebody took of a witness interview or tape recordings or photographs or medical records, just any written material, just any material in the case. It used to be that you wouldn't get it until closer to the trial, sometimes right before trial, sometimes during the trial. And there was, because New York was so restrictive compared to the rest of the country, there was a big reform that now it's 15 days from the initial arraignment or 30 more days. So 45 days total, you have to get all discovery before you can proceed. So it's gotten much better. The

playing field is much more level for defense attorneys. And there's more transparency. And frankly, people who are accused of a crime now know what the evidence is and what people are saying. I mean, how can you prepare for your defense if you don't know what what the evidence is against you? I'm laughing because I've done federal white collar crime cases in defense where literally the prosecution announced at the end of day one of trial, for instance, okay, our witnesses tomorrow are going to be these three people. And like at least two of the three, my defense team and I would look at each other like, who are they? And they would hand us a folder. And that night we would prepare our cross-exam. I think one of the reasons I've become very good at cross-examination on the civil side is that like you in your career, I'm used to grabbing a yellow pad, drawing a line down it, going to the podium

and cross-examining the person on the spot without ever having seen a transcript or really anything that helpful. And that's trial by fire for you and I, that's what we got to do. It is. And it was a great learning experience, but it's interesting, the more senior you get and the more seasoned you get as a trial lawyer, I think unless there's a danger of somebody sort of like a gang type of retaliation issue, unless there's something like that where there's a safety concern, generally speaking, the more senior, more seasoned prosecutors, even before discovery reform, would just turn over their whole file in advance because you really don't win anything by playing. There's no sort of tactic, tactical advantage you get by making someone stay up

later the night before. I mean, it's sort of a ridiculous practice. And I'm glad that New York moved in this direction. Yeah. And you could be, if you're a prosecutor, you could be buying yourself an appeal that was unnecessary. So let's leave Hemphill. We'll leave it with this. People might be wondering what happened to the poor guy. Well, they overturned the conviction, the Supreme Court based on this ruling this past week. And the prosecutors have said, well, we've got enough evidence that we're going to retry and we think he's going to be convicted again. And of course, the defense is arguing for a whole new trial. So I'm not sure where I'm not sure if he just stays in prison or he gets released now that the Supreme Court has ruled.

We'll have to get into that and report back next week. But let's move to a to a interesting, fascinating, almost ripped from, you know, like an episode of Ozark. This case is crazy. I couldn't believe the facts of this case. And we're going to be putting up tonight with our producer, Salty, a picture of what these guys look like. And they're all guys. And when you see the photos, you're almost like, well, of course they did it. Look what they look like. But that's just a little anecdote. This is Governor Whitmer. This is a very serious matter. Governor Whitmer, who became unpopular because she was rightly enforcing COVID policies and masking policies in Michigan, got sideways,

apparently, with a group of, I don't know what they were, but they decided, here's a great idea. Let's kidnap her while Governor Whitman is at her house that's in the woods, her cottage, her hut in the woods. And they had a whole plan, like there was a bridge nearby. They were going to blow the bridge in order to cut off rescuers. I mean, this was like crazy stuff. And they got caught, as they often do. Now, the trial of these six individuals, I think five actually, one is pled guilty and is being sentenced, is scheduled for March in Michigan. The defense has put forward primarily an entrapment defense, which we'll talk about, which is an affirmative defense that they're going to put onto the jury with a different

standard of proof, different burden of proof. We'll talk about that less than what the prosecution has to try to convince the jury by, in this case, a preponderance of the evidence that they did not have a propensity to be criminal. They're not criminals in their heart. No, no, no. They were dragged into this by the FBI, who put this whole plan together in order to entrap them. The FBI designed and implemented this plan and then got them into it. And they've got those two prongs that they've got to satisfy primarily that the government put together the plan

and entrapped them and they wouldn't have the normal propensity to commit this crime anyway. I think that last prong, they're going to have a hard time. They're going to have a hard time with, but there's a thing here I want to get KFA, I want to get your opinion on.

There is a series of rogue undercover informants, apparently, that were working for the FBI, but that were double agents. And talk about cases that are put together by prosecutors in using informants and when sometimes those informants go awry and what it means for the prosecution. those informants go awry and what it means for the prosecution. So this case I found fascinating because on the one hand, you've got these domestic terrorists that are being compared. What they were doing here was very much being compared to the January 6 insurrection. I mean, they have names, their group is called, I think the Wolverines or something like that. And they also, they follow something called the Boogaloo Boys, I mean, or the philosophy. I think that the Wolverine Watchmen and the Boogaloo movement, something like that. It was just, I couldn't believe it when I saw that. The other thing that I thought was so bizarre was there were more informants and undercovers in this case than

I think most people would ever realize would be in a particular case. Certainly, I haven't seen something like this before. Let me just explain the difference between what an undercover is and an informant. So this was a case that was on the radar of the FBI. And so they were the investigating agency. And what they decided to do, they felt like this was sort of a domestic terrorist group that could be volatile and could be disorganized the way the January 6th insurrection was. But yet, with just the light of a match, it turned into complete chaos and an insurrection. And they were worried that this had that feel.

And so what they did was they put some FBI undercover agents into the groups to infiltrate so that they could know what's happening, watch what's happening, and prevent anything terrible from happening, but allow the individuals to do enough that they don't cause harm, but they do commit a crime with which they can be charged. So it's this very delicate balance. And it's a little dicey because you've got FBI agents, they're pretending to be criminals and they have to speak a certain way and do certain things. And there's all kinds of rules about how do you fit in with them if you don't engage in some of their behavior and yet don't commit crimes. It's very hard to be an undercover infiltrating something like this, but they had some of

those individuals. In addition to that, they also had informants. Informants are regular people like you and I who decide that we're going to work for the government. I'm involved in something. It's either I need money or it's crossed my moral line or I somehow decided that I'm terrified and I don't want to get caught, so I'm going to work with the government. Or they do get caught. And if they do get caught and they get charged, then they can flip. They become what's known as a cooperating witness or a cooperating informant. So there's sort of these different types of things, but this had all of the above. And not only did it have all of the above,

it even had one- Can I ask a question before you move on? Sure. Does the prosecutor ultimately, is that the person that approves the involvement and the hiring or the retention of the CI, the confidential informant, the informant, the undercover? Is that all eventually have to be approved at the prosecutor level? prosecutor level? Only the confidential informant, which is the one that was charged and then flipped and works under a cooperation agreement. The undercover agents, undercover police officers, and informants, every law enforcement agency, local, state, and federal have all three of these and work them. And some are paid informants. They get paid to tell them what's going on in the street, and they never see the inside of a courtroom. Some are working off a case. Some are just doing it out of the goodness of their own heart. But they all have these things known as handlers,

which is a person that works with them, tells them the rules, monitors them, et cetera. In this particular case, they had both. But what I thought was so surprising is they also had someone in there named Steve, who was a double agent. He was working both both sides. So, not only was he working as an, so he was pretending to be one of these Wolverine watchmen. And at the same time, he was giving information to the FBI and pretending to be an informant. But what he was also doing was he was taking the information he was learning from the FBI and then tipping off his friends. And so he was a double agent. And there were a few other things that went awry in this case. I think several of the FBI agents have

either been fired or not being called as witnesses. I think one of them was arrested for domestic violence since this happened. Another one was arrested for trying to start some business on the side. And so there's all sorts of stuff that as a defense attorney, you would want to use to cross-examine the witnesses. And the main defense here is it's the I did it, but defense, right? I did it, but I wasn't trapped. It's this interesting kind of legal concept that basically is saying that they told me what to do, or I was only following kind of what they told me to do. They lured me into it. And it's a, go ahead. What I found most interesting about that is, and a reminder to our legal AFers out there,

is that while the prosecution has the heightened burden of proving the crime beyond a reasonable doubt, the affirmative defense of a trapment that's given to the defense is at a lower burden of proof. They only have to convince the jury by what's called the preponderance of the evidence standard that that affirmative defense applies. So while the prosecutors like you in your former life have to prove no reasonable doubt to get six, 12, or whatever amount of jurors. The defense team just has to, we used to talk about preponderance of the evidence in court, where we do civil cases, as it's like a scale that's evenly balanced, but a feather lands on one side of the scale, just tipping it just enough that the preponderance of the evidence is in favor of that position. That, I think, is also interesting.

But go ahead. It is interesting. But what's also interesting about this is, don't forget, the people or the prosecution have, or the government, whatever different places call it, different things, the prosecution has the entire burden of proof. So 100% has the entire burden of proof is on the prosecution. And as you said, it's this high burden of you have to prove it beyond a reasonable doubt. And that means a defendant and his attorney can sit there and not say a single word. They don't

have to give an opening. They don't have to give a closing. They don't have to cross-examine anybody. They don't have to do anything. And the prosecutor has to prove 100% of their case beyond a reasonable doubt, every element of every crime beyond a reasonable doubt. What the interesting thing about an affirmative defense is, that does require the defense to do something. And that's what affirmative defenses are, is that it does require them to open their mouths, yes, to open their mouths and to prove, but to also prove a lesser standard, the preponderance of the evidence, as you said, but they have to try to prove to the jury that they have, it almost sort of, it doesn't really shift the burden to them, but it does sort of shift the burden. It's an interesting concept in the law, but here the entrapment defense, as I said, it

was the, I did it, but defense. And, and it doesn't, I think historically, I don't think it has much success. A lot of people try to use it with a good example would be you got a drug dealer on the street and you've got someone who wants to buy drugs, but they don't want to go up to the drug dealer. So they see someone standing on the side of the road and they just say, hey, can you go get that for me? And then that guy is the one who gets caught. And he's like, wait a minute, I'm not really somebody who usually does this kind of thing. And so the standard that they use to sort of get over this hurdle is two concepts, the concept of inducement and predisposition. So were you induced to do this? And did you have a predisposition to do this? And did you have a predisposition to do this?

And I think if you're in the Boogaloo Boys, you're going to have a hard time proving you didn't have a predisposition. Yeah, but, you know, I will say, yes, you are correct. And there were, I think, 12 informants and undercovers total. And there were 14 people arrested. total and there were 14 people arrested. I mean, you had a very large, a very large amount of informants and undercovers. And it's going to be very interesting in this case because I know that the people who are prosecuted are going to want to bring all that evidence in and the government's going to try to keep all that evidence out. And this is going to be one to watch. Very interesting. And we're going to do that. We're going to do that. It's going to, the trial looks like they've tried to, the defense has tried to delay it again, but it looks like the trial is going to be in March and you and I

will report on pretrial proceedings and the trial itself when it, when it, when it comes due, but we're, we're coming up on the clock here. I'm sensitive to the clock. And let's do our third story, which actually Ben Mysalis, my co-anchor for the weekend edition, if you will, of Legal AF covered at least the beginnings of. And I just want to touch on it here. And my main focus in talking about the Fawnie Willis, the DA of Fulton County, Georgia, who I think has got one of the strongest cases against Trump for criminal prosecution because she's got an actual phone call from Trump involved with his fingerprints on it to try to find 11,000 votes.

That's all we need, folks. My perfect phone call. My perfect phone call. Everything's perfect with Trump. He's never done anything that's not perfect. But you finally have Fonny Willis know, Ben and I reported on Fannie and her prosecution or her investigation months ago in the summer. We we put a little a little pin in it and told our listeners and followers something's going on down in Georgia with this prosecution. There's nothing really ready to report. Now it's reached a fevered pitch. She's gone to the Fulton County Superior Court Chief Judge, Judge Brasher.

She's made a formal request to have a special grand jury empaneled, which is different than the regular grand jury that meets to indict, you know, felonies and other things, you know, drug cases and robberies and murders and things. This is a special grand jury that will be dedicated only to the investigation surrounding Trump, Meadows, probably Lindsey Graham, and their attempts to criminally interfere with the election process and overturn the election process in Georgia. It's going to be comprised of 16 to 23 people. And Judge Brasher has said in granting it, okay, Ms. Willis, you have it for 12 months, meaning you got a continuous group of people. All they're going to do is focus on this one issue for the next 12 months, and they have the power to issue subpoenas,

to call testimony, but they can't, at least in Georgia, the special grand jury cannot indict. At the end of their process, they issue a report of findings. Then if Willis from those findings believes that she has a case and exercising her prosecutorial discretion, she can take that to the regular grand jury to obtain an indictment. But you and I talked offline once about the difference between New York special grand juries because they're different state by state and the one in Georgia. What are the differences that you noted? So a couple of things. It's very common to call for a special grand jury. So as you pointed out in New York, we have regular sitting grand juries that serve a term. Some of them are two-week terms. Some of them are four-week terms.

And usually you sit for a morning or you sit for an afternoon every day during that period of time. And you have to have at least 16 people for a quorum and at most 23 people. And basically, it's where you bring any felony in New York, any felony charge that you want to prosecute must be brought to a grand jury. And there's no hearsay allowed in the grand jury. So, witnesses come in and testify, say allowed in the grand jury. So, witnesses come in and testify, and you can also subpoena documents. And it's a lower standard. It's a reasonable cause to believe that a crime occurred standard. And there's no cross-examination in grand juries. And so, it's also, there's grand jury secrecy as well. So, if no one's charged, no one is going to know that you even went into the grand jury or what you said, et cetera. So there's all these rules surrounding grand juries and how they work.

And some people think that grand juries are this pro forma. I think there was a famous quote once by, I don it's some, I don't know who said it. I know where this is going. Yeah, you could indict a hand. It's so easy to seek to get an indictment. You could indict a ham sandwich. I think that's slightly overstating it. Which sounds delicious.

I think it's slightly overstating it. I mean, I've basically had many trials in the grand jury because grand jury because defendants have a right to go in if they want. They have to waive immunity. You do get immunity in New York too, by the way. So you got to make sure you got the right person in there because if you put the wrong person in there, they are immune from prosecution for that crime. And that's different than in other states. A lot of states you don't get automatic immunity because you go into the grand jury. And in some states that I practiced in, the defendant is not in the room for grand jury, certainly not the lawyers. They have no rights to say anything when they're in the grand jury. So you can have pretty intense mini trials in the grand jury. And I will say too, the grand jury is with all of the

podcasts like these and television shows. And in addition to that, just the advocacy groups out there shining a bright light and transparency on prosecution, jurors are much more savvy than the ham sandwich days. And grand jurors ask a lot of questions and are holding us, holding us, I keep saying us, I'm no longer a prosecutor, holding prosecutors accountable. You're our prosecutor, KFA. Their feet to the fire. So New York, that's the difference. But let's say I were still a prosecutor in New York, and let's say I was in the process of investigating a long-term case like the one here in Georgia. My understanding in this particular case is there are many witnesses who are refusing to cooperate with this investigation. who are refusing to cooperate with this investigation.

And so Fonny wants to, DA Willis wants to issue subpoenas and force them, compel them to come in and testify under oath. And so by calling for a special grand jury, A, you can do two things. A, you can have a much longer period of time. So let's say your case can't be done in two weeks or four weeks like a normal grand jury term if it's a long-term investigation. And that's one reason why you would call for a special grand jury instead of a regular grand jury. And it allows

you to continue to investigate the crime. It allows you to subpoena witnesses. It allows you to subpoena documents. And you can look at records, correspondence. People have to come in and testify. And my understanding is that the Georgia Secretary of State, Brad Raffensperger, also has refused to cooperate thus far. We're going to get corrected. It's Raffens's perjure. I've been told this by our chat. Well, okay. I apologize for that. But my understanding is he so far has refused to cooperate in the investigation. Well, you can't refuse a grand jury subpoena. And just so everybody knows, a prosecutor doesn't have inherent subpoena power. The prosecutor has subpoena power through a court or through a grand jury. And really, when you issue a subpoena power. The prosecutor has subpoena power through a court or through a grand jury. And really, when you issue a subpoena for someone to appear either in court or into a grand

jury, they don't have to come to your office and speak to you first. They can just go straight to court and talk to the judge or the grand jury. And so it's sort of interesting. And it's this is the teeth. It gives it gives D.A. Willis teeth to continue this investigation and see if they can develop a case, you know, and bring a case. I think that's that's a good wrap up for that. I think it indicates that that she's gone as far as she can go in the last eight months without having these superpowers being given to her by the chief judge and now the special grand jury. She's not getting a level gone as far as she can go in the last eight months without having these superpowers being given to her by the chief judge and now the special grand jury. She's not getting the level of cooperation that perhaps you got in other investigations.

And I think one day, not today, because we're at the end of our show, we'll talk about things that the SEC or the attorney general or different departments, while they may not have subpoena power, you know, I have clients that don't like getting a civil investigative demand either. And, you know, legitimate companies do respond to these things and don't wait for subpoenas. This is the exception, not the norm. You know, when a financial services company gets a civil investigative demand from the SEC or its New York equivalent, believe me, they act like they just got subpoenaed and they cooperate. But we'll talk about those things and the difference of all those things. I think that's the type of inside baseball molecular level information that you and I are able to provide on a show like this with our

component. But KFA, I am really enjoying, I find this to be delicious. I'm really enjoying our time together, the conversation that we're having, and by extension that we're teaching people and enjoying each other's company as well. So thank you for agreeing to do this with Legal AF and do it with me every Wednesday. Shout out to the Midas Mighty and Legal AFers who know that Saturdays and Sundays are the main podcast with Ben Mysalis and me. We do a Saturday night, 8 p.m. And we're doing this Wednesday nights at 8 p.m., but Saturday nights, 8 p.m. And then we're going to be doing a rebroadcast right after that, a repodcast right

after that. And we drop the audio on every place where you can find your podcast. And this one will of course be, I guess, Wednesday night or early Thursday morning, you'll be able to find this particular podcast on Apple, on Google and all of those things. Rate it, review it. We've already seen some really nice shout outs to KFA and to this show in particular. It matters. It keeps this show going. It keeps this show alive, which is really, really important. But KFA, can't imagine a better way to spend 30 or 40 minutes on a Wednesday than with you. Thank you. I've really enjoyed it. And by the way, it's 8 p.m. Eastern for everybody who's not in New York. And why do I not? You know, that's so good of you to do that, because I did do an informal poll on my Twitter

over the weekend because we were getting a lot of people putting up the states and the countries that they live in on Legal AF. And at the end, a very nice one of our followers who's American but is in Thailand of all places made a map, which I will post on our Twitter feed. And it came out that we currently have at least 42 US states represented by legal AFers and 15 foreign countries in our audience. So you're totally right about that. I'm being too New York. I'm only talking on East Coast time when we're literally global and around the world. We'll see everybody next Wednesday, same time, same place.