Ahmaud Arbery killing trial and a new Durham probe indictment are making the headlines this week. In this sample from the CAFE Insider podcast, Preet and Joyce discuss jury selection issues in the trial of the three men who are charged with killing Arbery, a 25-year-old Black man, in 2020. They also break down the grand jury indictment in the Durham probe of Igor Danchenko, a Russian analyst who contributed to the Steele Dossier, on charges of lying to the FBI.
In the full episode, Preet and Joyce discuss opening statements and self-defense arguments in the Arbery killing trial. They also break down the latest developments in the House select committee’s investigation into the January 6th insurrection at the Capitol: new subpoenas for Trump allies John Eastman and Michael Flynn, former DOJ official Jeffrey Clark’s refusal to answer questions before the committee, and Trump’s lawsuit to prevent the release of documents subpoenaed by the committee.
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REFERENCES & SUPPLEMENTAL MATERIALS:
United States v. Travis McMichael, Gregory McMichael, and William “Roddie” Bryan, U.S. District Court Southern District of Georgia, indictment, 4/28/21
United States v. Igor Danchenko, U.S. District Court District of Columbia, indictment, 11/3/21
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This is an unofficial transcript meant for reference. Accuracy is not guaranteed.
Hey folks, Joyce Vance here, there's big news out of the House Select Committee investigation into the January sixth insurrection at the Capitol former President Trump in the committee squared off in federal court over whether the national archives can release Trump White House documents subpoenaed by the committee. The judge and the case is expected to decide whether a former president can assert executive privilege and former Doj official Jeffrey Clark who took part in a scheme designed to overturn the twenty twenty election appeared before the committee, but refused to answer any questions.
in other news, a grand jury indicted E Gordon Genco, a Russian analysed, who contributed to the steel dossier on charges of lying to the FBI, he's the third person to be charged in the Durham probe into the origin of the FBI's Russia Investigation and
Trial started for the three men who were charged with killing Ahmad Arbitrary, a twenty five year old black man last year, Crete Baron. I discuss all this and more on the cafe insider podcast today were sharing a clip from the episode with listeners. It stay tuned to hear our full conversations and acts as all other Cathay insider content. Try the membership free for two weeks. You can do that at cafe: dot com, slash insider, that's cafe, dot, com, slash insider! We look forward to having you is part of the insider community, nor the other thing
the striking about this case unintended is the way that some jurors were actually unintended, but then, when I said I wanted to have intended it. If that makes any sense, does a controversy over the striking of jurists are. The main jury consists of twelve members of the community eleven white people in one black person, which is not reflective of the diversity of
community this issue that comes up from time to time. We can his lay very quickly. Both sides have a certain number of challenges, call peremptory challenges where you can remove jurors and say we want them sitting on the job
free and you don't have to give any recent so long, as per the very very famous case, called Batson, be Kentucky from nineteen. Eighty six
so long as your reason is not discriminatory based on race or sex or some other protected class,
so long as that is true or not solely on that you can strike whoever you want. Normally it's the case historically, and we talked about this with respect to a guy, was tried for murder six times and made successive Batson challenges. Normally in the case of the defence, is accusing the prosecution of striking jurors here, it's the prosecution. Could both sides have us, earn title
no a fair trial here, it's the prosecution, the challenged a number of strikes, a black people from the jury. How often do you see that an, and do you think that was a miscarriage in some way? Usa, you always say it and civil rights cases, and I would categorize this here. Every civil rights case I've ever characterized. I've made a reversed Bautzen challenge, but here's the problem, the nuances real different when it's the prosecution, that's alleging that the jury selection processes
tainted with racial animus. If you're the defendant, you make your bats challenges and you ve got an issue on appeal. If you're convicted, it doesn't work that way if you're the guy right, because if you lose the case, there
is no appeal. Double jeopardy has attached and be
to have a quick click of quick story by the act, is making another to the east and we're trying to educate, lay people about the law. There was a federal district judge who I won't name in the Southern destroyed Newark, which is a hard job to get life tenderness, famously that judge and is not the political and never done criminal work and instability
new private practice. When one of my fellow prosecutors was arguing about an issue. The judge says to the prosecutor- and this is sitting federal judge a courtyard would like tenure says you ve made your
record you can raise it on a plan. My gosh, not understanding the point. You just made, which is it's the end of the road for the prosecution, if that, if the bad really resulting in acquittal, there's no appeal, and it's not just the end of the road for the prosecution. If the judge were to give the
burn meant the benefit of about some strike and remove adjure. It creates some uncertain
de under the law, whether the defendant would be able to argue, if there is a conviction on appeal that he was deprived of a proper jury, I I think the lasting just
that it's not structural air and not directly appealable, but it it does involve some litigation risk. So it's nodded heritable thing to see a judge being conservative trying to protect what everyone hopes will be a conviction down the road by this
token that than the numbers here are horrible, and this is not unusual least in the south injuries. We have the same dynamic here where you see very few black people, Hispanics Asians in these jury, pools compared to their percentage in the population. That may
reflect tell the jury pools or are drawn. They usually come off of stuff. Like voting,
rules and drivers licences because you qualify people. You exclude jurists, for instance, who aren't citizens or in some cases who have criminal convictions, but in this case the jury that the two sides struck from had thirty six white people and twelve black people, and you ended up with eleven white people and one black people at the end on this jury to people understand the reason this can happen is the prosecution, Sousa defence striking blacker after blocker,
There is a challenge and then, in response to that, the law makes clear that, if the defence or, if it's the other way round the prosecution in this case, the defence has some little in this- is the language of the law, legitimate nondiscriminatory, clear, reasonably specific and related to the case reason.
to strike the journey that has nothing to do with there being black or white or anything else. Then it's an appropriate strike of the tour, the promised for various people who talk about this issue and are critical of the effectiveness of the bats and rule that it's pretty toothless, because there's lots and lots of ways to articulate a reason apart from race that still may be a pretext, because it still may be that you're really trying to get rid of a jury because of their race. But you have, this other, articulates the reason that it may be more or less persuasive. Depending on the on the situation, you can still have
very unbalanced jury like this, and I think it's baked into the way the bautzen process works, so I'm gonna be legally very,
nerdy for a minute we're in the Eleventh Circuit in Georgia, and so there is a very deliberate three step process that the Eleventh Circuit has established for these sorts of bats and challenges. The reason that this sort of self indulgent is because is actually one of my cases, a two thousand six case that I argued and the court says: here's what has to happen
The party that's making the challenge has to show a prime aphasia case of of animal of racial animist or or saying that it Batson could also apply, for instance, to gender based strikes, and once the party that objects to the strike makes that showing of animals, then the other party in this case the defence, has to come forward with race, neutral.
reasons first strikes here's one of the problems in bats, and you can imagine how easy it would be to argue a race neutral reason. Will it wasn't that that job was black? It was that I saw her attention being distracted and I thought maybe she wouldn't be a good and attentive you're, and so, ultimately, the third step of the bats and process is a requirement that the court of valuing the credibility of that new troll, not race, based reason for the strike and because judges are really concerned about protecting the record on appeal. They want it air in the favour of the defendant, and in this case that means that they let these strikes of black jurors go through.
So will follow what what happens. In that case, you there's something to talk, or we can talk about everything. Does I've seen other trial going on of Kyle written House? Then? Maybe we'll talk about in the future, but I feel, like you feel active legal news is accelerating choice,
Think this week has been sort of overwhelming in it's crazy that both Rittenhouse Ann Arbor, your happening at the same time as
civil trial in Charlottesville over the events. There there's a lot going on specific lions in civil rights criminal, although the Charlottesville cases civil, but it comes out of criminal activity there so pray. We should also talk a little bit about the Durham investigation. You will recall that John Durham was a trump era. U S attorney in Connecticut and towards the end of the Trump administration, billboard deputized him as a special prosecutor. This isn't the same type of special prosecutor statute that set Robert Mauler up is the special counsel for the investigation that he conducted. This is a little bit different of a procedure that permit you to put a sitting D. O J employed in place and bar was pretty clear about what he was doing. He why
this Durham investigation, to continue into the next administration and by making the appointment- and in this way he made it very difficult for the next attorney general to curtail dirhams work and in fact we learned recently from the attorney general merit Garland that Dirhams investigation has been funded for the next year. So this investigation makes me think about that mean that's been going around how it started how it's going. You know this started as an investigation into whether the crossfire hurricane investigation into the connection between Russia and the trunk campaign, whether that was a hoax that
something that bar wanted to establish that here's how it's going. We ve had now three pretty low level prosecutions for lying the federal agents, the most recent one came down just this week. It doesn't seem like the Durham investigation is living up to the promise that bar and even Trump made for it that it would take down this whole terrible conspiracy this
article witch hunt into the Trump administration you're only that may be true. I would make couplings clear from from my perspective, and that is so. This gentleman, Igor, Densher, Anko, has been charged with five counts, essentially making false statements to the FBI. I don't call that a process crime,
That's the way in which, when people wrote me on the other side, the aisle would denigrate some of the prosecution brought by Bob Mahler. I think
if it's a material lie in connection with it, duly authorize investigation its righteous to charge such people now the last case against the domain name: Mister Solomon,
you and I were critical of because the details of indictment made the case seem rather thin and there were
about the materiality. I don't know much about this. If it is the case that Mr Jan Genco told
lies and he knew them to belies the FBI and they relate to representations he made about who has sources were for information and ultimately made its way into the steel dossier. That's a crime, he should be held accountable and issues
punished whether not overall the german investigations living up to its billing is, I think, a good question, but if you compare the crimes who should be held accountable for them?
so I agree with that and I suspect will talk about materiality of the statements, but can I just underline what you said about how important these cry?
I'm sorry. It's ironic. I'm teaching obstruction of justice this week to my first, your criminal students so,
you know how to do it exactly here's how to get in trouble. You know where we ve studied perjury will do a thousand and one which is the charge in this case tomorrow.
and something that I say to them, is that these are more than mere process crimes. If you believe that one of the most important goals of the criminal justice system is finding the truth- and I
leave that, then these are very important crimes, their tough to prosecute, but it means that their righteous. The question that I have here, though, is densher. Anko is interviewed in twenty,
seventeen. The indictment suggests from January until may be early fall there. Some interviews that go on and the alligator
is that he lies about the source of his information in those interviews where I'm a little bit stuff
On this indictment- and maybe you can help me understand it- is how is that material right for this to be criminal conduct? The lies then have to affect the course of the FBI's in
negation and the allegation that I see in the complaint is: will it caused the FBI to do a lot of work, to figure out that Damn Genco with law?
and I am not entirely sure that that rings the bell for materiality revenue, member, so clear material
Some other cases are. I think when we were law enforcement, we took a pretty broadly
I always always material. But pre. Can I just say this: if this is what
materiality means. It made the f b. I go. Do a lot of work to figure out whether it was true or not. I can think of some people, like maybe Jared cushioned or with his repeated problems with his security clearance, certainly MIKE Flynn, who now has a pardon, whose conduct would be far more material. If this is the standard that we got a question about what I'm wise something happening, there
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Transcript generated on 2021-11-09.