aburkhartlaw

Colonel Kurtz and I had a wide-ranging conversation about the allegations against Russell Brand; the problems of trial by media, the gray areas in human sexuality, and the limits of due process are just some of many things we talked about. This is part 2 of our conversation where we talk about the hue and cry doctrine, acquiescence vs. compulsion, and whether feminism is really helping to empower women to have more satisfying romantic relationships. Watch Part 1 of the conversation here: https://youtu.be/N1WIkAuTz_0?si=wNwfg5TP8jJgx21H

When I walked into the Latah County Courthouse on Friday, I didn't think the defense's chances of getting all of the investigative genetic genealogy discovery they are asking for were very good. While parts of the process, like the development of the SNP profile, seem to fit within the discovery rule as scientific examinations, other parts, like the creation of the family tree, do not. IGG raises interesting privacy considerations but I did not think the defense did a good job in the briefing of previewing what the constitutional arguments would be if the State did, in fact, access genetic profiles of people who had opted out of law enforcement matching. However, evidence presented at the hearing as well as some of Judge Judge's comments from the bench have led me to believe the motion has a good chance of being granted. 00:00 Intro 00:44 Why the State's argument is hard to overcome 01:23 Problems with the defense argument about the targeted investigation 03:05 Problems with the defense argument about suppression 08:11 Why the statistical evidence was the game-changer for me 13:14 How Judge Judge tipped his hand Bonus reading: State's Motion for Protective Order: https://s3.us-west-2.amazonaws.com/isc.coi/CR29-22-2805/061623+States+Motion+for+Protective+Order.pdf Defendant's Third Motion to Compel: https://s3.us-west-2.amazonaws.com/isc.coi/CR29-22-2805/062323+Defendants+Third+Motion+to+Compel+Discovery.pdf Declaration of Anne Taylor: https://s3.us-west-2.amazonaws.com/isc.coi/CR29-22-2805/062323+Declaration+of+Anne+C+Taylor+in+Support+of+Defendants+Third+Motion+to+Compel.pdf Declaration of Bicka Barlow: https://s3.us-west-2.amazonaws.com/isc.coi/CR29-22-2805/062323+Notice+of+Filing+Declaration+of+Bicka+Barlow+in+Support+of+Def+Third+Motion+to+Compel.pdf Declaration of Stephen Mercer: https://s3.us-west-2.amazonaws.com/isc.coi/CR29-22-2805/062323+Notice+of+Filing+Declaration+of+Stephen+B+Mercer+in+Support+of+Def+Third+Motion+to+Compel.pdf Defendant's Objection to State's Motion for Protective Order: https://s3.us-west-2.amazonaws.com/isc.coi/CR29-22-2805/062323+Objection+to+States+Motion+for+Protective+Order.pdf State's Response to Third Motion to Compel: https://s3.us-west-2.amazonaws.com/isc.coi/CR29-22-2805/070523+States+Response+to+Defendants+Third+Motion+to+Compel+Discovery.pdf State's Reply in Support of Motion for Protective Order: https://s3.us-west-2.amazonaws.com/isc.coi/CR29-22-2805/071423+Reply+In+Support+of+Motion+for+Protectiive+Order.pdf Declaration of Leah Larkin: https://s3.us-west-2.amazonaws.com/isc.coi/CR29-22-2805/080923-Notice-Filing-Affidavit-Leah-Larkin-Support-Defendants-3rd-Motion-Compel.pdf

Once again, I was in the courtroom when the motions on investigative genetic genealogy, grand jury irregularities, and alibi evidence were argued. In this video I give you a recap of what happened, what I saw, and what to expect in the coming days as the trial date rapidly approaches. 00:00 Intro 00:20 Who was there 03:21 COVID made an appearance 04:15 Which motions were heard and which were not 08:37 How the press blew it again 10:27 Also they may be jeopardizing the pool camera 13:55 What was decided and what was not 16:45 The judge set a number of deadlines and hearings in anticipation of 10/2 trial 22:04 Up next: A little more detail about the arguments

In the midst of the disagreement over whether the State has to turn over genetic genealogy evidence it used to target Bryan Kohberger as a suspect, the defense revealed the first official new information we've received about the case since the gag order was issued and the search warrants from Pennsylvania and Washington were released ... and it's a stunner. In a publicly filed document, the defense states, "There is no connection between Mr. Kohberger and the victims. There is no explanation for the total lack of DNA evidence from the victims in Mr. Kohberger's apartment, office, home, or vehicle." This revelation paints an incredibly different picture of the State's case against Bryan Kohberger than the news coverage of it would have us believe. When he was first arrested, many of us commented on the scantness of the evidence in the probable cause affidavit, but we all expected that the search warrants issued for his car, as well as his cell phone and computers, would rule him either in or out. This brief statement from the defense tells us that those searches did not produce corroborating evidence for the State. Thus, the State's case apparently no stronger than it was the day Bryan Kohberger was arrested, despite the fact that if these killings occurred the way the State claims, we would very much expect evidence of it to be in those places. This is a big, big development in the case. Who do you see reporting on it? 00:00 Intro 00:21 Explaining the source and the context 02:40 Examining the filing 06:01 "No explanation for the total lack of DNA evidence from the victims" 06:30 Why the absence of evidence is a bombshell here 09:08 So the State appears to have made little to negative progress since the p/c affidavit 11:58 Anticipated objection: But he could have cleaned the car! 14:38 Anticipated objection: But this is just the defense saying so! 17:48 This information critically undermines the media narrative that Kohberger is obviously guilty The source document: https://coi.isc.idaho.gov/docs/case/CR29-22-2805/062323%20Objection%20to%20States%20Motion%20for%20Protective%20Order.pdf

Domestic violence runs in families, and the reasons why are complex and multi-varied. I've seen my foster kid clients grow into becoming my adult criminal clients, and it's tragic to see how the games abusers play victimize their own children and plant the seeds for normalizing abuse. In this case, the record shows Alice creating, over a period of several years, precisely the coercive and suggestive circumstances that are well understood to create a high risk of false reports, including false accusations, false confessions, and false memories. It's a complex situation when children make false accusations, but abusers use black-and-white thinking to cast any doubt, no matter how reasonable, as a victimization of the child. What we're seeing unfold is classic trauma bonding - an abuser deliberately inflicts trauma on a child and then serves as the child's source of comfort for that trauma to increase the child's dependence on the abuser. It's Alice's own behavior and the coercive environment she created for the children that undermines the reliability of the child's report, while simultaneously broadcasting the accusations as broadly as possible with the assistance of her good friend at the Daily Mail creates an opportunity to cast any reasonable doubt about the report as victimization of the child. The use of her child as both sword and shield is the end game of Alice's parental alienation campaign, and it comes as no surprise at all to those who are watching this case and are familiar with the dynamics at play. 00:00 Intro 00:41 I knew this was coming months ago 02:16 The justice system struggles to deal with the intergenerational cycle of abuse 03:02 We know a ton about false accusations and how/why they occur 04:59 Coercive and suggestive circumstances create risks of false reports 05:44 False accusations are complex, but abusers use black and white logic to manipulate victims 07:05 The vast record of coercion and suggestion by Alice against her children 10:09 Spelling out the game Alice is playing to victimize her daughter 11:47 This is classic trauma bonding that perpetuates the abuse cycle 15:09 I have the court docs, so we'll look at them next Part One: https://youtu.be/JQDzWkuYcjw Part Two: https://youtu.be/c-Fa2_jmnMQ Part Three: https://youtu.be/cdPgGhmKoB4 Part Four: https://youtu.be/u2kD0bJHVb4 Part Five: https://youtu.be/cq2AfJL3PbA Part Six: https://youtu.be/7t6xkzB-umU

This is a pretty casual recounting of my trip to the Latah County Courthouse last Monday to attend the arraignment and motion hearing in the Idaho 4 murder case. If you watched the stream of the hearing, you had a better view of what was happening than I did! But I still noticed a few things that stood out to me from being there in person and have some things to share about the general environment, the experience of getting into the court, and what it was like in the courtroom. 00:00 Intro 00:18 Getting into the courtroom 03:31 Once we made it into the courtroom 06:03 One notable observation when Bryan Kohberger entered the courtroom 07:03 My thoughts about Judge Judge and his mispronunciation 09:06 More impressions of Bryan Kohberger and Anne Taylor 10:27 About "standing silent" 12:59 Some side thoughts about plea bargaining discussions 14:06 Why no speedy trial waiver? 17:55 Very different courtroom dynamic for the gag order hearing 19:15 Judge Judge dressing down the AP's lawyer was spectacular 23:30 What to expect from the discovery motions 25:20 My future plans in this case and others Find all kinds of cool art on Instagram @heidielkington Bonus reading: Court minutes from the arraignment: https://coi.isc.idaho.gov/docs/case/CR29-22-2805/052223%20Court%20Minutes%20-%20District%20Court%20Arraignment.pdf Court minutes from the gag order hearing and scheduling the motion to compel discovery: https://coi.isc.idaho.gov/docs/case/CR29-22-2805/052323%20Court%20Minutes%20-%20Scheduling%20Conference.pdf

You might think that once one parent has been found to have committed domestic violence against the other parent, that the children would immediately be taken from the abuser. But, rarely are these cases that black and white. We're going to look at why that is, starting here with reviewing the status of the custody proceedings between Ioan and Alice and then examining the laws that govern how custody decisions are made. Separating children from parents they've bonded to is always going to be traumatic for children, but in the case of domestic violence, California law creates a presumption that it's not in the best interests of the child for an abuser to receive sole or joint custody. This means that Alice is very much at a disadvantage if she insists on contesting custody, unless she can prove to the court that she's sufficiently rehabilitated that it is in the childrens' best interest for her to have custody. 00:00 Intro 00:35 The story of the custody dispute between Ioan and Alice so far 04:04 There's a stipulated agreement for visitation, but it hasn't been reliable 06:34 There's a contested custody hearing scheduled in July 2023 07:32 Parental rights are constitutionally protected, but the State acts as parens patriae 09:16 There's a strong presumption that contact with both parents is best for children 11:20 These are the specific statutory factors the court looks at to make custody decisions 16:31 But they don't all weigh the same, and DV creates a presumption against custody 19:45 You generally need to show rehabilitative actions to overcome the presumption 21:53 The DVRO finding is going to trigger the DV presumption, so blowing it off was unwise 23:47 Up next: So given this legal position, what explains the legal strategies here? Part One: https://youtu.be/JQDzWkuYcjw Part Two: https://youtu.be/c-Fa2_jmnMQ Part Three: https://youtu.be/cdPgGhmKoB4 Part Four: https://youtu.be/u2kD0bJHVb4

Ioan's girlfriend Bianca Wallace is also protected by the restraining order. From the moment Alice learned of her, she targeted Bianca for social media harassment and abuse. We also see how Alice's behavior escalates over time and, more than a year after Ioan left her, she is continuing to create narratives to villainize him and Bianca, pit him and Bianca against the children, and violate their boundaries. Even though this behavior culminates in Ioan's DVRO petition and the temporary order he received in February 2022, Alice responds by losing her lawyer and repeatedly announcing her intention to violate the TRO. The entire episode is an epic tale of bad judgment, and we'll see how bad in the next video when we look at California Family Code section 3044 and what it means for the custody dispute. 00:00 Intro 00:33 Ioan's relationship with Bianca began June 2021, but Alice didn't find out until later 01:17 When Alice found out, she went on a rampage 05:16 Then she targeted Bianca on social media with harassing and abusive posts 09:45 Ioan doesn't file until February 2022, so what happened then? 15:09 February 9 is when things come to a head and we see how Alice manufactures her narratives 22:56 Alice's response is a summary denial that just makes her look bad in light of all Ioan's evidence 24:45 Between the TRO in February and the hearing in August, Alice makes some bad decisions 27:53 Up next: Even without criminal charges, the DVRO affects the custody trial Part One: https://youtu.be/JQDzWkuYcjw Part Two: https://youtu.be/c-Fa2_jmnMQ Part Three: https://youtu.be/cdPgGhmKoB4

It's time to deep dive into the evidence that Ioan Gruffudd submitted in support of his request for a domestic violence restraining order. In 14 pages of sworn testimony and about 75 pages of documentary evidence, the DVRO petition breaks down the dissolution of the relationship and how Alice reacted to it by harassing Ioan with unwanted and abusive texts, e-mails, and "Our Family Wizard" messages. The messages show Alice refusing to honor boundaries that she previously agreed to, blaming Ioan for her insulting and threatening tirades, blackmailing him, and involving their young daughters in the conflict. If the patent verbal and psychological abuse weren't bad enough, Alice also makes admissions that leave little room for doubt that her behavior meets the criteria of "harassment" and "disturbing the peace" that were necessary for the restraining order to be issued. 00:00 Intro 00:45 Overview of what's in the evidence 01:25 Timeline of the marriage breakdown 02:20 Alice told me she'd do to me what Amber Heard did to Johnny Depp 03:28 Ioan's relationship with Bianca Wallace begins June 2021 04:26 March 2021 to July 2021 - pages of abusive text messages 06:35 Some of the ranting texts 09:46 Name-calling, blackmailing, and triangulating ... sounds like Amber Heard. 12:45 I'll tell the whole world as long as I live and it's your fault 14:31 May 24, Ioan gives notice, sets boundary: This is harassment and abuse 16:12 Alice admits "tormenting" Ioan = no legitimate purpose element established 17:46 July 22, Ioan blocks Alice, directs commmunications to Our Family Wizard 19:47 It worked for a little bit, but then Alice found out about Bianca 21:45 Also, she just starts harassing Ioan's mom instead 23:21 A case study in triangulation - more Amber Heard vibes 25:22 But wait, there's more! Coming up in the next video. Part One: https://youtu.be/JQDzWkuYcjw Part Two: https://youtu.be/c-Fa2_jmnMQ

The DVRO is what sets this case apart from a run-of-the mill divorce, so that's where we're starting the deep dive. First, a look at the standards and process for obtaining a DVRO and what the DVRO that Ioan Gruffudd obtained prevents Alice from doing. Ioan's evidence had to prove harassment by clear and convincing evidence, so what is harassment? We know that Alice didn't show up to the DVRO hearing or file any opposition to Ioan's petition despite having six months to do so and a lawyer representing her for most of that time period; but Ioan still had to meet the "clear and convincing" standard to get the order, it doesn't issue just by default. The order tells us specifically what Alice is prohibited from doing, so we know that whatever she allegedly did that resulted in two criminal charges of violating the DVRO being filed against her violated one or more of those restrictions. The criminal case is still pending and Alice is presumed innocent of those charges. But, by contrast, the DVRO allegations have been finally adjudicated, and this will have downstream consequences for her potential legal strategies. 00:00 Intro 00:48 A look at how the statutes empower the family court to restrain domestic violence 03:30 There is overlap with anti-harassment restraining order laws 04:43 CA CCP 527.6 lays out the process for getting a DVRO 06:01 The standard to get a DVRO is clear and convincing evidence - a pretty high burden 07:52 Let's look at the DVRO itself to see what the judge did 09:03 Some context - did Alice have a lawyer or not? 11:43 The details of Alice's restrictions - what exactly can she say and not say? 15:18 Now Alice is criminally charged with two counts of violating the DVRO 16:14 Alice is presumed innocent of the criminal charges, but the DVRO hearing has been finally decided 16:59 Up next: Ioan's allegations and evidence supporting the DVRO Watch part one: https://www.youtube.com/watch?v=JQDzWkuYcjw&list=PL8WXX74UtY7_dkfPgkw9iz18Khk9LHoCv&index=1

First, we need to lay out the facts of the situation that we're dealing with. Anne Taylor was appointed to represent Bryan Kohberger on December 30, 2022, the same day he was arrested in Pennsylvania. Why did this happen so quickly and why was she selected? Here, we look at Idaho's public defender standards - why they have them and what they require when it comes to appointing a public defender in a capital case. Latah County is certainly going to be interested in the least expensive option, Bryan Kohberger is likely to want the attorney who is in the best position to meet with him regularly, and Anne Taylor is the closest attorney available to take the case. Now that we've got the context of the appointment clear, we can that the situation was at the time Anne Taylor was appointed and apply these facts to the law of conflicts of interest that we'll look at in the next video. 00:00 Intro 00:22 Anne Taylor was appointed to represent BK while he was still in Pennsylvania 01:22 Some historical background on Idaho's public defense standards 02:26 First, how the rules define a capital case in this situation 03:28 Second, the rules set procedural requires for capital appointments 05:15 Once the State got the arrest warrant on 12/29, everyone knew he'd need a lawyer 07:19 So why Anne Taylor?

Various voices in the media have asserted that Anne Taylor, Brian Kohberger's court-appointed public defender, has a conflict of interest because she, and/or staff attorneys at the Kootenai County Public Defender's office, previously represented the mother of Xana Kernodle and the father and step-mother of Madison Mogen. On December 30, 2022, the Latah County District Court ordered Ms. Taylor to represent Brian Kohberger. On January 5, 2023, Ms. Taylor withdrew from representing Cara Kernodle in Kootenai County against pending drug possession charges in place of a conflict public defender. I have seen a variety of opinions suggesting that this was improper or unethical, as well as concerns that her role in the case could create issues for appeal. So, in this series, we're going to look at the Idaho law on the subject to walk through these questions. I'm a practicing appellate criminal defense lawyer, so looking for issues like this to raise in defendants' appeals is exactly what I do professionally. We're going to look at several of the Idaho Rules of Professional Conduct, as well as case law applying them, that spell out exactly what attorneys' obligations are to prospective clients, current clients, and former clients; what conflicts of interest are; and when one attorney's conflict requires the entire office to be disqualified. Additionally, we're going to look at the Sixth Amendment standard of assistance of counsel to evaluate whether Brian Kohberger could win a new trial based on Ms. Taylor's prior representations. Based on this review, these are the conclusions I've reached that we're going to walk through. Was there anything wrong with Taylor taking BK's case at the outset? NO. Does she need to withdraw now? No. Will BK be able to get a conviction overturned on appeal based on the 6th Amendment? ALMOST CERTAINLY NO. 00:00 Intro 00:34 Background: Anne Taylor's prior representation of Cara Kernodle and the Mogens 01:42 There's lots of opinions about this - which ones are worth your attention? 02:33 My job is to look for appeal arguments for defendants - that's what we'll be doing 03:22 The bottom line: There is no legal problem here 04:15 Warning: We've got a lot to cover, so this'll require more than one video 04:55 First thing we'll be looking at: Rules of Professional Conduct 05:20 RPC 1.18: Duties to prospective clients, like Bryan Kohberger 05:32 RPC 1.7: Conflicts of interest with current clients 06:12 RPC 1.9: Duties to former clients like Cara Kernodle and the Mogens 06:39 To get anywhere in a criminal appeal, we'll need to cover the Sixth Amendment 07:48 We're being thorough because the villainization of Anne Taylor is uncalled for Hat tip: Link to article by Idaho attorney Lori Hellis: https://mailchi.mp/7d0f21c483c2/special-edition-bryan-kohberger-lawyer-conflict-of-interest?e=4f66d882f7 Lori Hellis on Twitter: @lorihellis

Esme Bianco has settled her civil case against Marilyn Manson for an undisclosed sum of money and, judging by the statements announcing the settlement, absolutely no apology, admission of wrongdoing, or public atonement from Manson. Does this sound to anyone else like Virginia Giuffre 2.0? In Part 2 of this conversation, Colonel Kurtz and I talk about what this settlement means from a legal and PR perspective and what would motivate Manson to settle even though he has definitively denied the accusations. Part 1 of the conversation is on Kurtz's channel here: https://www.youtube.com/watch?v=k5FiRlS1bPQ

If the defense strategy will be to systematically attack the State's evidence, how will they approach and break down the cell site location information obtained from his phone records? As with all forensic evidence, the devil is in the details; so, we look at some of the questions the defense team is likely to be asking. After an overview of how the communications between cell phones and cell towers can be used to calculate the phone's position, we'll talk about the factors that can affect how reliable and precise these determinations are and why it's potentially a pretty different situation in Moscow, Idaho than in denser urban settings. We also see a hint in the probable cause affidavit that the cell data may not tell the whole story when it comes to determining Bryan Kohberger's location. 00:00 Intro 01:16 Why the pings are important in the circumstantial picture 02:39 There's a lot NOT said in the p/c affidavit that affects the pings 03:29 Pings: the basics 05:00 The two best methods of locating a phone: GPS and triangulation 07:16 Because you need multiple connections to triangulate, cell tower density is key 08:23 Overlapping cell coverage isn't as common in rural areas 10:00 The p/c affidavit uses vague language that doesn't tell us the strength of the data 12:32 There's a question whether the pings reliably establish cell phone location 15:17 The legal standards for admitting scientific evidence generally require reliability 19:04 Want to learn more? Links below! 19:49 Coming up: How the defense will approach the DNA evidence For more reading: Blank, Aaron, The Limitations and Admissibility of Using Historical Cellular Site Data to Track the Location of a Cellular Phone, 18 Rich. J. L. & Tech. 3 (2011): https://scholarship.richmond.edu/cgi/viewcontent.cgi?article=1354&context=jolt For more detail on the technical issues: Hussain, Syed Asad et al., Positioning a Mobile Subscriber in a Cellular Network System Based on Signal Strength, IAENG Int'l J. of Comp. Science, 34:2 (2007): https://www.iaeng.org/IJCS/issues_v34/issue_2/IJCS_34_2_13.pdf

We've seen the bare bones of the State's case presented in the probable cause affidavit supporting Bryan Kohberger's arrest. The case looks pretty strong to a lot of folks, so how could he possibly be planning to defend against it? In this video, we look generally at the types of defenses that are available in criminal cases and evaluate whether they are likely to be available or pursued here. 00:00 Intro 00:27 Affirmative defenses vs. general denial 00:58 Let's break down the nuances of Idaho's limited insanity defense 03:42 Why I don't think mental health defenses are likely 08:34 What about an alibi? Why we'd found out early if this is his plan. 10:00 We can cross off most other affirmative defenses on the facts of the case 10:56 If he just generally denies guilt, what does that look like? 12:45 Coming up: Some ways the defense may evaluate or attack the evidence

There is no question in my mind that had D.M. not seen a strange masked man in her home the night that her roommates Kaylee Gonçalves, Madison Mogen, and Xana Kernodle, and Xana's boyfriend Ethan Chapin, were murdered, police would not have narrowed their pool of suspects down to Bryan Kohberger as quickly as they did. While this night undoubtedly inflicted a trauma on D.M. that she will never forget, her investigative actions that night and her bravery in telling police what she saw may have saved lives by directly leading police to a predator before he could kill again. Here, we look at why her observations played such a critical role in the investigation and why, without her information, the investigation probably would have foundered. Everyone who wanted to see a suspect in court as soon as possible owes an enormous debt of gratitude to D.M., the real hero of this case. 00:00 Intro 00:41 What D.M. told police, according to the affidavit 03:06 The horror that D.M. experienced is unthinkable 04:25 Probable cause requires individualized suspicion - her description provided that 08:19 Without that piece of the puzzle, there's no warrant and no suspect 10:30 Up next: How will Mr. Kohberger try to defend himself? Find the full probable cause affidavit here: https://coi.isc.idaho.gov/docs/case/CR29-22-2805/122922%20Affidavit%20-%20Exhibit%20A%20-%20Statement%20of%20Brett-Payne.pdf

It goes without saying that one of the most influential figures in the case of Idaho v. Bryan Kohberger will be the judge. So who is he? In this case, it's easy to figure out because there is only one option, and just from his name alone, you might think he was born for this moment. We take a look at Judge Judge's experience and his record in court to see what it might tell us about his temperament and how he'll handle the case. 00:00 Intro 00:25 How we know who the presiding judge will be 02:38 Looking at his experience on the bench 04:13 As a lawyer, Judge Judge did some private criminal defense work, quite successfully 06:31 But this case is so far outside everyone's experience - how will he do on the fly? 08:00 From his record, he doesn't look like a stereotypical "hanging judge" 10:57 The parties can disqualify the judge for no reason, but I don't think they will here 12:51 He's also the administrative judge for the Second District - what does that mean? 15:39 My takeaway: I'm optimistic about Judge Judge

Police have arrested Bryan Kohberger for the murders of Kaylee Goncalves, Madison Mogen, Xana Kernodle, and Ethan Chapin on November 13, 2022 in Moscow, Idaho. This case caught my attention not just because of its horrifying facts, but because it's happening in my neck of the woods - Moscow is not far down the road from me and right across the border from Whitman County, Washington, where WSU is located and where I've handled multiple cases. To be honest, I was surprised at the news of the arrest because of how much time has elapsed since the killings. But now that the case is heading into court, there's no way I'm not going to be following it closely. In this video, I'll be giving a quick introduction to the legal processes we can expect to see in the short term - the extradition process in Pennsylvania and when Idaho will bring him into court. Besides the procedural rules, we'll also look at the charging standards for pursuing the death penalty in Idaho and when the probable cause affidavit - the document that sets forth the facts and evidence establishing probable cause for the arrest - will be released. 00:00 Intro 00:47 Some extradition basics 02:18 Why it's not surprising that Kohberger would waive an extradition hearing 04:34 What happens after the Tuesday afternoon hearing in Pennsylvania? 05:53 Once he's back in Idaho, when will he go to court? 06:51 When will we get to see what evidence they have against him? 07:55 Are they going to charge him with the death penalty? 12:27 Summarizing where we are and what's next

The settlement agreement between Johnny Depp and Amber Heard hasn't been made public, so we learned of the settlement only through the spin doctors that announced it through various media channels. As a result, there has been a lot of speculation about what the agreement consists of and what legal significance it has for the future. I take a look here at the parties' official statements about the settlement and the steps that have so far been taken to carry it out to analyze what the likely structure and significance of the settlement is and predict what kind of legal documentation we are likely to see to formally terminate the case. Of course, I also have plenty of thoughts about why they settled, things they told us without meaning to by the words they chose, and whether that rumor that Amber is getting a book deal is believable or a hot pile of flaming PR garbage. *Disclaimer - Amber Heard is no Roberto Duran. 00:00 Intro 00:42 Because settlements are usually private, it's a challenge to see past the spin 02:16 Breaking down Amber's statement: Lots of face-saving 05:11 What's with the "I'm not gagged" remark? 09:02 Gotta call out her reason for settling 11:21 "The big tell" - Why I think Amber is actually going to shut up now 14:01 It's honestly sad how much Amber wants to be admired without earning it 15:54 More of the details are revealed in the Brown Rudnick statement 18:07 Debunking the spin about the judgment going away 20:45 What are the chances of the settlement falling apart? 22:05 This settlement surprised me - why did they do it now? 26:40 Johnny was still caught up in abuse by litigation, but not anymore 29:34 With Depp v. Heard winding down, what's next for my channel

You know from my earlier videos that the amicus briefs are trash, and Ben Chew does not hide the fact that he agrees! In this video we look at the memorandum he has filed opposing the request of the amici curiae to have their briefs considered by the Court of Appeals. Ben is a master at remaining formally correct to give himself the leeway to speak with candor, and this brief has lots of examples of that. Like me, Ben sees these briefs as a transparent attempt to evade the page limits that are supposed to apply to Amber's arguments. However, I think he missed some opportunities to make an impression on the court and may come across as out of his comfort zone in the Court of Appeals. Ultimately, the norm is to allow the amicus briefs as a courtesy, but Team Johnny should have confidence that the Court of Appeals will be capable of seeing that the amicus briefs do not merit a response and decline to waste time rebutting them. 00:00 Intro 00:23 The formality of the writing is notable and strategic 04:03 Remember, the Court of Appeals is new to the case and probably not annoyed yet 06:10 Relying upon the honor of the trial judges isn't necessarily effective 09:50 Reasons are better than italics for emphasis 10:41 A missed opportunity to nerd out with the appellate court 14:21 The synopsis of Ben's overall argument is contained in the introduction 18:30 Primacy and recency means end on a snarky note 20:19 Technical defects are fine to point out but can usually be cured 22:15 But leave it to Amber's amici to annoy the court into throwing them out 24:01 The header for argument 2 is better than the argument 28:34 Procedurally, whether and how to respond to amici briefs is ambiguous 31:24 A formatting pet peeve - fix that widow! 32:38 Quoting and citing trash from the briefs would have been how to show, not tell 34:34 The use of the law in the brief is a bit underwhelming 38:39 I would have preferred focusing on the burden on the court, not the burden on Johnny 40:22 The amici aren't going to move the needle so not responding isn't catastrophic 42:19 The decision making process is opaque and we don't know when the court will rule 43:40 Prediction: They'll be allowed, but Amber might wish they weren't 45:40 Up next: Johnny's reply has been filed, so it's time for a deep dive on his appeal! Review of the (trash) first Amicus brief: https://www.youtube.com/watch?v=heSTGM4cbLg&list=PL8WXX74UtY7_rW_FtHfvMFW2JQzbKF09P&index=7 Review of the (worse) second Amicus brief: https://www.youtube.com/watch?v=ASn-Kh8Izrg&list=PL8WXX74UtY7_rW_FtHfvMFW2JQzbKF09P&index=9

The second amicus curiae brief is basically the same tired attempt at relitigation as the first amicus curiae brief, only more rambling and whiny. It barely even addresses the law and when it does, it fantasizes legal rules that do not exist in the cases from which they are drawn. As with the first amicus brief, these authors have very much confused the private interests of Amber Heard with the legal interests of the public at large. This brief will not move the needle, if it even gets considered. Ben Chew has opposed the amicus briefs, so we'll be looking at his opposition in the next video! 00:00 Intro 00:18 First impression: Who are you and why are you here? 02:43 The Table of Contents does not sell this brief at all 04:10 These headers are the worst we've seen so far! 07:34 The argument is the same thing we already read but rambles more 09:23 Some things that caught my interest: An error shared with the first brief 11:26 Hypocritical First Amendment geniuses are the funniest! 14:09 They rely on law the undercuts their position 16:08 They try to use a "see" cite to make a case say something it doesn't 20:23 Bottom line: The parade of horribles won't get the win 21:57 Coming up next: Ben Chew's opposition to the amicus briefs Review of the (trash) first Amicus brief: https://www.youtube.com/watch?v=heSTGM4cbLg

Amber Heard got some top notch lawyers for her appeal and it shows in many ways in the brief that they've filed on her behalf. But they were also unnecessarily handicapped by trying to cram SO MANY complaints into the 55-page limit; it means they were unable to devote the time and space to flesh out any of the arguments because they spent so much of the brief talking about throwaway issues that have no chance of winning. The brief is extremely distilled and organized - it has to be to cover 16 assignments of error in the space allocated - but the writers made editorial decisions to omit certain things that may come back to bite them. If nothing else, they've given Ben Chew a very big opening to highlight the weaknesses in their case because rather than anticipating and addressing them, Team Amber has simply not mentioned them. They've put their credibility on the line and they may regret not addressing the evidence of the hoax until after Johnny talks about it first. As with Johnny's opening brief, I'll be getting into the more detailed legal analysis after the response briefs are filed. But for now, there is nothing in this brief that suggests to me that Amber has a particularly strong chance of winning her appeal, and the strategy of shotgunning complaints at the court is one with a high potential to backfire. Both opening briefs are available for download here: https://andreaburkhart.com/documents 00:00 Intro 00:45 The first impression from the table of contents - there's too much crammed in 02:14 The problem with this approach: In law, the devil is in the details 04:10 This brief gives us some well-crafted issue statements 05:30 The Table of Contents tells us what issues they are prioritizing 07:04 The lack of time/space on their issues requires them to take analytical shortcuts 08:36 The Statement of Facts says a lot by what it omits 10:55 Smart choice to organize arguments by remedy each would provide 13:36 No deep dive on the merits yet, but I don't think she's going to win 14:12 A peculiar choice to invoke a politicized hypothetical 16:36 Admission by omission: Where's the harmless error analysis? 21:03 Bottom line First Look at Johnny Depp's opening brief: https://www.youtube.com/watch?v=9xrC83JoGiE

"Amicus Curiae" means "friend of the court" in Latin, but the amicus briefs that have been offered in Depp v. Heard in support of Amber Heard function more as "friends of Amber" briefs. Normally, amici curiae (plural) are individuals or groups with an interest in the legal question the court is considering on appeal because they will be affected by the ruling. As an example, in cases where the court is considering the lawfulness of a search, police organizations will often appear as amici curiae because the ruling can affect how they do their jobs. The purpose is to educate the court on how their interests are affected because the parties often don't have the time, knowledge, or inclination to advocate for interests beyond their clients'. What an amicus brief is NOT, however, is a backdoor for a party to exceed the page limits of their briefs by enlisting outside groups to represent interests that are unique to the party. Johnny has opposed the briefs and it is entirely up to the court whether it will accept or reject them ... and although it's not common for amicus briefs to be rejected, these ones are so unhelpful to the court and so patently serve as vehicles for presenting Amber's personal arguments, that I think there's a real chance the court could reject them. So, let's look at why. This video focuses on the Sanctuary for Families, et al. brief to which Michele Dauber, Charlotte Proudman, and other noisy "feminists" are signatories. There's so much trash to sort here that I'll be addressing the second brief in a second video. The terms "amici curiae" and "amicus brief" are often used interchangeably. 00:00 Intro 00:41 What this video is going to cover 01:36 What are amici curiae and why are they filing briefs? 03:34 Looking at Virginia's rule for amicus briefs 04:52 What first impressions will the Court get from the table of contents? 07:07 Amicus briefing isn't a way for a party to avoid page limits on their own briefs 08:15 Sufficiency of the evidence is not a common interest, it's Amber's interest 11:11 Choose your appellate issues carefully, because the court might address them 12:42 "Allowing the verdict to stand" isn't what the court is there to decide 14:28 Let's dig into the substance 15:21 Sane people know that calling the jury ignorant is unwaise 16:53 Announce you're not serious by setting aside what the appeal is actually about 18:44 Try not to ground your entire argument on something inadmissible and maybe even sanctionable 22:43 It's best if you call the jury legally ignorant right after demonstrating you are 23:18 Also trashing up page 3 is an argument for error that hasn't been assigned by anyone 25:42 Let's outline what the amici's argument structure is 26:32 The jury defines "abuse" by what they think Amber meant, not the dictionary 27:38 Judge White's letter ruling spelled out the jury's task 32:49 The court probably won't even read their cherry-picked facts 34:06 17 pages in we get some law, and what they served up is weird AF 37:25 They finally acknowledged the experts, who undermine the claim that the jury was ignorant 38:00 Bottom line: The actual malice argument is trash 38:30 You need a legal argument before the court cares about policy arguments 40:44 You should also establish why this case will have the effect you claim 42:34 What numbskull lawyer would sign their name to this flaming trashpile? This guy! 45:46 Up next: The second brief, if we still have any brain cells

Johnny Depp filed his appeal brief right on time in the Virginia Court of Appeal. This brief is addressing his arguments that the $2 million judgment entered against him on the basis of statements Adam Waldman made to the Daily Mail about Amber's abuse allegations should be reversed. The $10 million judgment against Amber is being addressed separately in her appeal, and she was granted an extension of time to November 23 to file her brief. Remember, I am waiting to do technical legal analysis until all of the briefs have been filed, so this video is more to give you my big picture impressions and my insights about its style and presentation. Overall, it's very competent legal work and easy to read. Ben's clarity and organization will please the court. But, if I'm going to criticize something, it's that the brief lacked an emotional hook and was overall a bit dry - it's easy to understand but the reader isn't compelled to care about the legal questions. I'm betting that we will see a noticeable difference in "voice" from Amber's brief. 00:00 Intro 00:23 Johnny Depp knows about my channel! 02:07 Big picture takeaway: Appeals are hard to win and Johnny probably won't 03:21 I personally think his best chance is with third error argued 04:29 The hard part is court's skepticism about attorneys making public statements 06:57 Style-wise, you can hear Ben Chew's voice in the brief - clear and organized 08:07 Same old Andrea criticism: Needs more storytelling 11:23 A big deal for appeal attorneys: Johnny has an issue of first impression! 13:38 A prediction: Amber's brief will complicate where Johnny's tries to simplify 16:51 Takeaway: Johnny's brief is a very competent presentation of his arguments 17:23 Coming up: Amber's brief plus Amber's response to Johnny, then replies