Legal Color Commentary with Andrea Burkhart

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

Amber Heard has definitely tried to contort the law to her benefit on many occasions, but this argument that the U.S. District Court (where she's being sued by one of her insurance companies) lacks diversity jurisdiction because she's "stateless" is a long reach even by her standards. We look at what diversity jurisdiction is, the difference between a residence and a domicile, and why trying to claim homelessness abroad isn't going to create a jurisdictional problem. 00:00 Intro 00:37 The current status of the insurance lawsuits 01:23 Amber claims she's not a US resident, therefore no diversity jurisdiction 02:07 Federal courts have limited jurisdiction compared to state courts 02:57 Looking at the diversity jurisdiction statute 03:52 Factually, Amber seems to confuse vacation with residency 04:50 As usual, she relies on law that doesn't apply to her situation 05:45 In the case she cites, the party was a permanent resident of a foreign country 08:06 Amber would have to live in New York to destroy diversity 11:10 You don't escape your domicile (and its taxes!) by just deciding you're homeless 12:15 Residency vs. domicile 14:33 The insurance companies aren't super impressed either 15:51 Bottom line: It's trash

NO LAW ZONE! Colonel Kurtz and I share interests in philosophy, psychology, the British royal family, and contrarian takes. This is part 2 of a longer conversation about Prince Harry and his new memoir "The Spare," the influence of Princess Diana's own background with domestic violence, the monarchy as an institution, and lots more deep thoughts. Part 1: https://t.co/ndRNtZK5FH

More Assignments of error are in, but only from Johnny this time. Why did Johnny file what he did, and why didn't First Amendment Enthusiast Amber Heard bother to file any more? We'll examine the new assignments of error, and explore the underlying process for this stage of the appeal. What, if anything, does this new filing (and Amber's non-filing) tell us about the strategic approaches of the two parties? 00:00 Intro 00:42 The new filing is Johnny's response to Amber's assignments of error 01:42 Two judgments, two appeals 03:33 The person who won can't normally appeal, but can respond 04:48 First new error: Amber's anti-SLAPP claim 07:50 Second new error: Excluding the forensic pathologist Dr. Collins 12:27 Third new error: Jury instruction language - false statement vs. false implication 15:51 Bonus - how the jury instructions relate to the First Amendment arguments 18:36 Why none from Amber? Because most of those rulings went her way 22:25 So now we know all the appeal issues ... what next? My video on the initial Assignments of Error filings is here: https://www.youtube.com/watch?v=Xxb199LZSYg&list=PL8WXX74UtY7_rW_FtHfvMFW2JQzbKF09P&index=4

I had several folks ask me about a video by Katherine Lizardo and whether Amber Heard's appeal is going to be dismissed. Katherine did a great video looking into the rules that apply to the appeal, which you can watch here: https://www.youtube.com/watch?v=rDRhmKMIugE My conclusions from these rules are that Amber's designations of assignments of error are not defective but even if they were, she would likely be given a chance to fix it. 00:00 Intro 01:40 Rule 5A:25 is what applies to Amber's designations of error 02:05 Amber didn't designate an appendix - is that a defect? 02:29 The appendix not required if the record is filed electronically, which is what we have 03:28 Amber didn't cite to the record - is that a defect? 03:41 Record citations for assignments of error are in rule 5A:20, which applies to briefs 05:40 It's possible the requirements of 5A:20 apply to 5A:25, but I think that's unlikely 07:17 5A:20 also establishes consequences for three types of errors 08:26 Automatic dismissal doesn't apply to failing to include record citations 09:31 Technical problems can usually be cured, substantive ones are dismissed 10:54 My conclusions 11:37 Up next - Rule 5A:25 allows responsive designations of error, and we're getting some What are the Depp v. Heard Appeal Deadlines? - https://www.youtube.com/watch?v=pJJjTcGkpp4&list=PL8WXX74UtY7-IGSZhuUUk8FSjVA08ApZq&index=1 Will Bankruptcy Save Amber Heard? - https://www.youtube.com/watch?v=3YrX7t_nZtI&list=PL8WXX74UtY7-IGSZhuUUk8FSjVA08ApZq&index=2 Why Doesn't Johnny Collect His Judgment? - https://www.youtube.com/watch?v=riCKzaST_eU&list=PL8WXX74UtY7-IGSZhuUUk8FSjVA08ApZq&index=3 Can Amber Heard Win Her Appeal? - https://www.youtube.com/watch?v=e_jkLI2aN_E&list=PL8WXX74UtY7-IGSZhuUUk8FSjVA08ApZq&index=4

Deplatforming is becoming a big issue, with Nick Rekieta kicked off Twitter and YouTube (now thankfully restored) and Nate the Lawyer pursuing legal action against the would-be censorship czar, Christopher Bouzy. Two cases decided this year, NetChoice v. Moody and Netchoice v. Paxton, are on track to go to the U.S. Supreme Court. Both involve challenges to state laws that seek to prohibit social media and other large online platforms from censoring or banning conversations they don't like. In Moody, the 11th Circuit Court of Appeals concluded that online platforms have a First Amendment right to censor users, but the 5th Circuit Court of Appeals reached the opposite conclusion in Paxton. How the disagreement is resolved will likely have far-reaching consequences for the future of digital communication. We take a look at the state laws at issue, the reasoning behind both decisions, and the reasons to be concerned about corporate monopolies holding the power to control public discourse. The opinions are available online for review: NetChoice v. Moody: https://law.justia.com/cases/federal/appellate-courts/ca11/21-12355/21-12355-2022-05-23.html NetChoice v. Paxton: https://law.justia.com/cases/federal/appellate-courts/ca5/21-51178/21-51178-2022-09-16.html 00:00 Intro 01:58 Corporate control of political conversation has been a concern since Citizens United 05:51 The state laws at issue in both NetChoice cases try to stem these concerns 09:09 NetChoice argues these laws violate the platforms' First Amendment rights 10:09 Moody treats deplatforming as protected editorial decisions like newspapers have 11:16 Both cases also consider whether platforms are common carriers - what's that?? 14:03 Moody said platforms are conditionally open to users, so not common carriers 16:00 Moody treated Section 230 as proof platforms aren't common carriers 19:38 Paxton and Moody reach opposite conclusions from the same legal precedents 21:06 Paxton rejects the idea that platforms are engaged in speech 23:48 Paxton also saw platforms as common carriers 27:20 And Paxton disagrees that moderation is editorial because most stuff is never looked at 29:18 A key issue for Paxton was that platforms are becoming the new public square 31:56 The conflict in these decisions make it likely the US Supreme Court will decide

In the new documents filed last week in the Depp v. Heard appeal, Amber has designated 16 rulings as error on appeal; Johnny has designated 3. We can tell a lot about their respective strategies from their designations, and if you've been following my commentary on this appeal, you already know that the types of issues they've designated have a lot to do with their likelihood of success. Amber Heard's designations are counterproductive and self-indulgent; they drown whatever good points her lawyers might be able to make in petty complaints that will bore the court and looks like she has a million excuses for losing. Johnny's designations are targeted and consistent and he'll have a lot easier time fitting his arguments into the page and word count limits of the brief. The two documents are posted to my community page and are available for download here: https://AndreaBurkhart.com/documents 00:00 Intro 00:16 16 issues vs. 3 issues - what does that tell us about their thinking? 01:27 Some advice the appeal lawyers probably gave Amber 01:47 Looking at page/word limits and other requirements of the briefs 05:21 Then there's the psychology of the argument 09:04 The assignments aren't the reasons, so that's why the 1A isn't mentioned 10:36 Johnny's issues are focused and thematically related 13:04 Again, we're not judging the merits yet, but we can see the law vs. fact challenges 16:41 Johnny has a superior legal strategy 19:00 What to expect coming up My most recent video on Depp v. Heard appeal is here: https://www.youtube.com/watch?v=e_jkLI2aN_E Other videos about Depp v. Heard appeal: Appeal Q&A: https://www.youtube.com/watch?v=Erj8DJhN_a4&list=PL8WXX74UtY7_rW_FtHfvMFW2JQzbKF09P&index=1 New Lawyers, Same Problems: https://www.youtube.com/watch?v=s5v6R7Mqbpk&list=PL8WXX74UtY7_rW_FtHfvMFW2JQzbKF09P&index=2 Elaine's Noisy Farewell: https://www.youtube.com/watch?v=IuLSAGF07Mk&list=PL8WXX74UtY7_rW_FtHfvMFW2JQzbKF09P&index=3

No worries folks, we're not going to be giving anyone free legal research for their appeals here. But we are going to look at what makes some appeal issues good and others weak, so we can get a sense of the strategy involved in deciding what arguments to make. If she lets her lawyers make the decisions, these are some of the considerations that will guide them. But if she tries to use the appeal as a tool it's not intended for - to relitigate whether she lied - she can kiss her chances of success goodbye. 00:00 Intro 01:02 Are we talking about the facts, or the law? 03:55 What kind of legal ruling is being challenged? 06:06 Pure issues of law are the best because they get de novo review 07:42 Evidentiary rulings are discretionary, so get more respect 09:33 If Amber wants to nitpick exclusion/admission of evidence, she can, but it's weak 11:12 If it wasn't argued to Judge White or Judge A, it's waived for appeal 13:07 Some of the rulings they'll be choosing from 14:29 The final consideration ... preparing for higher courts 16:39 Thinking about what the US Supreme Court would be thinking about 18:02 The bottom line 19:02 Update on appeal deadlines 19:47 Of course I also have a personal opinion What are the Depp v. Heard Appeal Deadlines? - https://www.youtube.com/watch?v=pJJjTcGkpp4&list=PL8WXX74UtY7-IGSZhuUUk8FSjVA08ApZq&index=1 Will Bankruptcy Save Amber Heard? - https://www.youtube.com/watch?v=3YrX7t_nZtI&list=PL8WXX74UtY7-IGSZhuUUk8FSjVA08ApZq&index=2 Why Doesn't Johnny Collect His Judgment? - https://www.youtube.com/watch?v=riCKzaST_eU&list=PL8WXX74UtY7-IGSZhuUUk8FSjVA08ApZq&index=3

If Amber Heard hasn't filed for bankruptcy or posted a suspension bond in Fairfax County, why aren't we seeing any collection activity from Johnny? The answer very probably lies in the details of interstate enforcement of judgments and with California collection law in particular. 00:00 Intro 00:22 There's nothing to collect on in Virginia 01:00 The Full Faith and Credit Clause lets the judgment be enforced in any state 02:03 California is the most likely state for collection actions 03:40 The first step is to domesticate the judgment 04:24 There will be a court record 04:49 So why haven't they done it already? 06:07 California stays judgments during appeal 07:01 If other states are good forums for collection, they'll have their own rules 08:50 Amber's probably playing "hide your residence" 10:43 Running like a hunted fox is a viable strategy 11:23 The bottom line

Jake Paul has tried to position himself as the savior of professional boxing, and boxing fans have long known that corruption dogs the sport. But did he go too far this time by accusing Eddie Hearn and Matchroom Boxing of paying off a judge? In Matchroom Boxing, Inc. v. Jake Paul, Matchroom alleges Jake Paul's accusation was defamatory per se and reports indicate he plans to ask for more than $100 million in damages. Does Jake Paul need to be worried? Are there holes in the case he can exploit with a legal counterpunch? Story with video of Jake's interview: https://www.tmz.com/2022/09/23/eddie-hearn-sues-jake-paul-claiming-promoter-paid-off-judges-taylor-serrano-fight/ 00:00 Intro 01:28 Matchroom asserts its integrity in contrast to boxing corruption 03:42 The statements themselves look pretty bad for Jake Paul 03:53 Taylor v. Serrano - the claim vs. the card 06:13 Usyk v. Joshua - the claim vs. the card 08:33 Not qualifying the accusation was a mistake 10:30 Also good argument that it's defamatory per se 12:33 But lucky for Jake Paul, actual malice is hard to prove 13:46 Jake could play dumb about how judges are chosen 15:16 And his reasons for believing the accusation aren't crazy 17:06 New York has an anti-SLAPP law Jake can use 19:50 Personal jurisdiction looks very challengeable 23:57 The bottom line GLOVES OFF is where I'll be talking about cases that take boxers and boxing into the courtroom.

Part 1: https://www.youtube.com/watch?v=gNBfTldTbJQ I joined Colonel Kurtz and @TheMansonCases to talk about some of the new developments in the case, including the potential for Esme Bianco's attorney Jay Ellwanger to be disqualified as her attorney and the impact of a new California law passed this week to expand the statute of limitations to file civil claims for sexual assault during 2023. It seems inevitable that this bill is going to have trickle-down effects in the case against Manson, but whether those will actually be beneficial to Evan Rachel Wood remains to be seen - she could end up making the same mistake that sunk Amber Heard.

The public statements released last week by LA County Prosecutor Eric Gascon about the Marilyn Manson investigation and today's news that the LA Sheriff's Department has forwarded their report to his office for a charging decision are unusual in a case like this. It's unfolding like a game of hot potato to see who ends up being the target for the lack of charges that will inevitably follow. I've seen many criminal investigations and this public breach of OPSEC, combined with how this investigation has unfolded, lead me to believe that we are very unlikely to see Marilyn Manson criminally charged. Gascon's statement from 9/12: https://www.foxla.com/news/gascon-update-marilyn-manson-case Today's article: https://www.foxla.com/news/lasd-submits-marilyn-manson-investigation-file-to-la-da-gascon 0:00 Intro 0:30 ERW has been inviting publicity into the investigation 2:09 Still, publicizing investigation status is unusual 2:46 They're choosing to talk about it for a reason 3:21 There's lots of reasons to think the investigation has gone nowhere 6:08 The publicity looks very politically motivated 8:18 LASD isn't going to hold the potato 9:50 OPSEC basic is don't tip off your movements 11:00 You'd expect more coordination if the case was going somewhere 13:53 So what's going to happen next? 15:00 The appropriate thing is to shut up to not taint the jury pool 17:15 But political considerations lean more towards saying more 18:13 If there's a charge, it should happen fast