registry matters as an independent production. The opinions and ideas here are that of the hosts and do not reflect the opinions of any other organization if you have a problem with these thoughts fyp Hey, just a quick little note about tonight’s show, is that there were lots of technical problems that went on between on my end and on the guests and, and so this is everything seems to have come together. Okay, but just wanted to warn you that some audio challenges exist and that guests switches from a pretty high quality setup to just using the telephone. But just to give you a heads up, recording live from fyp Studios, east and west, transmitted across the internet. This is Episode 148 of registry matters. Lady someone in chat just a second ago. Apparently I forgot to feed the Gremlins because they’re angry and everything that could possibly go wrong has gone wrong tonight.
This it’s it’s a plot by the authorities they are trying to registry registry matters off the air.
This could be true man, this could totally be true. Well, what do we have going on tonight?
Well, we have an interview coming up later with our special guests. Ashley rebor, cloud defense attorney from the State of New Mexico. We have a couple listener questions. And we’re going to zip through some articles that that shouldn’t take a whole lot of time. So let’s let’s
let’s roll. All right, well, we will certainly get the ball rolling quickly. The first article that should be directed to those questions, first article we have comes from the crime report could pandemic jail reforms turned permanent in Colorado, which then we also have a like a companion article that talks about something very similar except for not quite the same thing in California. What’s going on here with these two things?
Well, in Colorado and Arapahoe County, which is a suburban Denver County, they’ve they’ve reduced the jail population. And they they have acknowledged that, that the doomsday scenarios did not materialize. And that they may want to keep doing business this way because it’s more efficient and less expensive. So congratulations to the ACLU to the officials in Arapahoe County. And unfortunately, that’s not the same thing happening in California. There’s a law enforcement initiative in California, which is our next article that they want to roll back recent reforms because there’s just it’s just not feeding the system, the number of people it needs to sustain itself. So they’re going the opposite direction. But it’s but it’s it’s underwritten by the police. What is amazing surprise.
But, you know, I don’t think of if we were to like, pigeonhole these things into team left or team, right. I wouldn’t call it Colorado like a bastion of leftism, but I would definitely call California that it would seem that California would be all over having these things become permanent, and maybe less so for Colorado, but this is coming out kind of the opposite way.
But you have the wild card that California has the initiative process that could cause bad things to pass by voter, you use the emotion of the moment, which since the pandemic and all the rhetoric about the tidal wave of crime as a law, a disorder, like of law and order. it’s it’s a it’s a great time to scare people and to get people to vote. So this is proposition 20, that if it’s passed, we’ll undo a previous reforms. And And the thing is, it’s underwritten by the conservatives, by companies, and by law enforcement. I mean, I’m just reading from the article. So it’s it’s one of those things where you really can’t judge the politics of California so much by who they elect because they have a process that bypasses that. And they can do it directly by going through the voters and the voters are not necessarily the best informed.
So there’s something that I was going to bring up those that Costco you were talking about different companies that are supporting or not supporting that they have pulled out of this proposition 20s passage, and they were asking for a refund or the $50,000.
I notice that and and, but the major donors of this or are a police union, a political action committee, benefiting Republican Representative Devin Nunez of California, and, and an Energy Corporation, and several grocery large grocery chains like Safeway, Costco, Ralph’s have collectively donated hundreds of thousands of dollars to promote the initiative, which means PR advertising and, and Costco has pulled it supported, they want their $50,000 back, but this is this is something where the voters will vote based on emotion of the moment. Because if there’s enough fear about the tidal wave of crime, and the police are telling you if you do this, you’ll be safer. It’s very tempting to vote for this. Right?
Yeah, it’s all about keeping the like the fear the impression that this is going to keep you safe. Larry, we are joined by a very special guest this week, Ashley raymar. Cloud. Ashley has been with us before cache like I don’t know, four or five, six times actually as a former assistant district attorney for the 13th Judicial District Attorney’s office who left last year to pursue criminal defense work, specializing in PFR cases. She spent the better part of her 25 year legal career as a prosecutor in New Mexico. She’s one of those people Larry, as a prosecutor. She has also held positions as felony DWI supervisor, arson division, supervisor and supervisor of the DA clinical program. during our time at the second and 13th district. Judicial District Attorney’s offices, Ashley has prosecuted and tried numerous cases including child sex crimes, murder, property crimes, drug crimes, domestic violence, escape from jail, arson and DWI. In addition, she has extensive technolog technology experience and forensics, cybersecurity, knowledge management and ediscovery as a consultant for law firms, and working for various software companies. Welcome, welcome. Welcome back. Ashley, how are you tonight?
Unknown Speaker 06:19
It’s great to be back. Thank you for having me. Again.
We can set this up. Ashley has just tried a case that involved sexual accusations in District Court here in bernalillo. County, which is Albuquerque, and it resulted in an acquittal. So we’re going to do a somewhat deep dive into to the results of that trial, the nuances of that of that trial. And I want to begin by congratulating Ashley with the many dozens of congratulatory messages that she’s received from, from our colleagues in the Defense Lawyers Association. For those who were skeptical if she actually does defend people, or she’s a sellout, I think that this would be one of those where when you look at what the person was facing, which we’ll get into, and the result of what now he’s facing, is a spectacular, spectacular outcome. And it’s, it’s those who say that, if lawyers would try more cases, we’d have more of these, we’re going to go into that and explain why that’s not necessarily true. But first of all, we had a listener question if Ashley’s back, like to do the listener question before we start going into this.
Excellent, excellent. Okay, so, so first question is Hello, my name is Michael from South Carolina. And I have a question for Larry, and Ashley, regarding the Fourth Amendment, if you are on supervision, but also reside with someone or family who isn’t? Can they disregard the Fourth Amendment rights of the family members? Also in that same situation? Can they legally tell my family members not on supervision? Not to put up any Halloween displays? That Hey, it’s that time of year? They’re?
Great question. I should go first, if you like.
Unknown Speaker 08:07
So, I’m in a resort to Larry’s talk answer, which is they can until they’re made to stop, technically, can they do it? No. Do they do it? Yes. Do they do it all the time? And have we challenged it? Yes. And Larry, I’m gonna let you just jump right into that.
I agree with that they can do almost anything until they’re stopped. And what stops them is either of the courts. And sometimes that doesn’t even work when they lose, or their own morality. But But in terms of when you’re living with a person, and they have approved that residence, one of the conditions they have is they want they want unlimited access on ferritin, I think is their terminology, unfettered access. So what they would do if they didn’t have unfettered access would be we have unfettered access to this. What they would do is they would say this is no longer an approvable residence, I think you’d have to challenge that. But they would say, since since you’re impeding us from doing our job, that we will say that this residence is not appropriate for you. And then you find yourself in court fighting about what is unfettered access, not unfair it
Unknown Speaker 09:16
Does this have anything to do with small animals?
Unknown Speaker 09:25
Oh, well, that’s a sign of old timers, like, right there.
I was thinking about your animals. But
Unknown Speaker 09:33
that was hilarious. That was awesome.
Pretty good. But yeah, that if they tell you that, that your residence is not no longer deemed appropriate, then what’s the next step? Actually, they tell you got 24 hours, 48 hours, 72 hours to find another place? What happens next?
Unknown Speaker 09:50
Then the next thing you do is you take that before the judge on your probation, assuming you’re not under an interstate compact, which is a whole other situation. But you take that before the judge yourself. To judge and you ask for clarification on your conditions of release,
Unknown Speaker 10:06
I’m sorry, probation conditions.
If you’re, if you’re on parole, that presents a different type of issue for you, because you’re under, you’re under a board of authority versus the court. And if you were to take the thing into court, most courts would do their best to duck it somewhat, but most would figure that that was an administrative issue for the, for the parole authorities to determine, and they would do their best to duck out of that.
So they, they can tell you that we didn’t have a problem with you living here, but because of Halloween decorations, because maybe the person, they do things that they don’t like they can then say you can’t live here.
That’s not only what they can do, that’s what they do, do. They, they, they tell people that that if the if the household see the households on under supervision, they can’t give any orders to the household members. But they tell them that that if the household won’t cooperate with your rules, then this household is not appropriate for you. And without the cooperation from the household members. It’s like the thing of the Second Amendment, you have every right don’t want to own a weapon. But they say we don’t want any weapons in the house for our safety. We that they can’t preclude you from from having the non supervised person from having the weapon if they were not a convicted felon. But they can tell you that you’re not gonna live there because we’re not gonna go to a place that has weapons everywhere.
Do they have some level of compassion about it of if like the room could be not necessary for the gun thing? I have a feeling that there would be almost like something that you couldn’t get past. But other things could they? Hey, if you lock off this room, maybe there’s a computer in the room just as an example. If you don’t have passwords to it, will they like give you a bye?
Unknown Speaker 11:50
Did you just use compassion, probation and parole in
the same sentence? I did. And and I breathed even breath I took a breath there as well. So is that is that? Is that a negative? Like, no, no.
Unknown Speaker 12:04
That’s a negative.
Unknown Speaker 12:05
Yep. That doesn’t make it are you
speaking specifically from the state of the New Mexico? Or is that what your collective experiences across the country
Unknown Speaker 12:16
on New Mexico and Georgia, but Georgia was not nearly as bad about that stuff, as New Mexico is new, Mexico’s horrible, horrible about it. They don’t care who in the house, they don’t care if it’s face recognition, software, and you can’t ever even get into that computer, they want. As Larry put it unfair to access.
Now, you’re gonna really mess up our spellcheck, or trying to figure out how to we got ferreted so many times, and he’s gonna have a real, real problem with that with the transcripts,
make up make him earn his keep. That’s all I said, especially with what he’s getting
paid. So, but so yeah, the short, the short answer is, Yes, they can. And you’re in for a fight, if you if you if you don’t like the fact that, that they impose these conditions on the household members, and they do it indirectly, because they cannot give them direct orders. They barely give them orders through you, you have to tell your household member, I’m not allowed to have these things where I reside. And if the household members are not willing to give up those things, they have a right to do that. But then they they will tell you this resonance is no longer approved.
Well, that sucks. But go ahead. Actually.
Unknown Speaker 13:28
No, I was just gonna say that we’ve seen that actually, not just in New Mexico in Georgia. We also saw in Illinois, where if a family member had a dog, And they didn’t want to approve the house for the family member having a pet or having a smartphone, they wouldn’t approve it for parole.
So it sucks it but that’s the way it is. That’s the way it is b i haven’t used that for a while.
But this is hyper state specific based on how your handlers are going to be in that specific state. Some states are significantly more aggressive than other states. I mean, just just the comparison in New Mexico and Georgia where I know people that have multiple PFR is under the same roof where Larry you’ve said that would absolutely 100% not happen in New Mexico. So your mileage may vary based on where you are.
Yeah, absolutely. Right. Absolutely right. they would they would never put to put unless it were husband and wife spouses it doesn’t have to be husband, it could be husband husband these days, but if it unless it spouses, they’re not going to put two pf RS on to the same. They’re just not gonna happen here.
Unknown Speaker 14:34
And, and even then they would try and break up the spouses. We’ve seen that right, Larry,
that was my next question. Are they gonna like intervene into relationships that may that they may deem like, I mean, short of it being an illegal relationship. Let’s just say they have some sort of personal vendetta against the opposite person. They can then step in and go, hey, there’s nothing really wrong with that person, but we don’t like them. I know. It starts to get sketchy, but they could do that too.
Unknown Speaker 15:02
Unknown Speaker 15:07
That’s not cool.
All right, let’s, let’s move on number two.
All right. So there’s a case that you guys are going to bat around. I’m gonna sit back and listen.
No, we got we got a question.
Oh, wait that what we’re going to do question number two first.
Unknown Speaker 15:20
Yeah, yes. Yes. That was a question I should actually wanted to do.
Okay. Okay. Oh, my bed, my bed my bed. All right. Well, then here’s question number two. It says, Look, I don’t know how many times I’ve been asked this, but I still don’t understand. So I hope you people will try to simplify the answer. Larry utters that legal mumbo jumbo and some of us need to be explained in simple terms. I am on an interstate compact in Georgia, and my conviction is from Jersey. I had community supervision for life in Jersey. Larry pontificates that the state of conviction controls the punishment. Yet Georgia requires so much that New Jersey did not. Georgia has Exclusion Zones where pfrs cannot live or be present in New Jersey did not. Also I have a curfew in Georgia, and my CSL in Jersey did not. Does Larry know what the hell he is talking about? Or does he just make this shit up as he goes, and I have embellished that because I
Unknown Speaker 16:15
was gonna say as much as I’d love to say that Larry makes a shit up. He doesn’t. He actually knows what he’s talking about the interstate compact, oddly enough, was a bunch of states getting together and saying, okay, we’ll take your person on probation or parole from your state, but we’re going to put some conditions on it. And our conditions, if you don’t like them, then don’t send your probation or parole he and the other state said, Okay, fine, we’re gonna do the same thing. And next thing, you know, under the interstate compact, that’s how it is. So the sending state controls whether or not you get actually truly replicated. However, the supervising state, which in this case would be Georgia gets to set whatever conditions they want. And if you don’t like it, you just go back to your setting state. Right, Laurie?
That’s mostly the way it goes. And and I would say the exception would be if there were a clear cut constitutional violation, and you wanted to litigate that clear cut constitutional violation. And if you could find a court that would actually receive your complaint, which is proven extremely problematic for those of us who have wanted to litigate these issues, you might be able to have the constitutional violation challenged, but simply having exclusion. So those Exclusion Zones have largely been upheld, largely up in upheld, so that while you under supervision, all those have largely been upheld for a supervised offender. So you’re probably not going to get a lot of traction on challenging an exclusionary zone while under supervision. But But what confuses him probably more is that Georgia has Exclusion Zones that are part of the of the registry, depending on your key dates of when your offense occurred. And the band of exclusions gets greater and greater. The more recent your conviction, the old was conviction. there either is no exclusions or there’s like maybe just schools, and then the more recent conviction, so he has to deal with figuring out what registry exclusions he has as being a registered person in Georgia. And then he has to figure out what supervision conditions Georgia has added his CSL that he didn’t have in Jersey, and whether or not he actually has a constitutional issue, not liking it is a constitutional violation. And that’s hard for people to comprehend. I didn’t have to do just in Jersey does not make that a constitutional violation in Georgia. Should you agree with that?
Unknown Speaker 18:43
I completely agree with that. And the other thing about it is that what it says into the interstate compact, and what the sending state agrees to is as long as they are enforcing the same conditions among similar people. So the existing people on probation or parole in Georgia are getting the same conditions as the person that they send, ie those Exclusion Zones, then it’s been upheld across the board.
Absolutely. And therefore, I would encourage anybody in this doesn’t be that this particular person, but anybody who’s in this condition where they have additional restrictions imposed in a receiving state, to think very hard about whether you want to sink a bunch of money into litigation, because it’s going to be expensive. They have unlimited resources. And they’re not going to want you to set a precedent that they that people come in from out of state can set their own terms of supervision. But what you want to do when you when you go to another state, you want the exact sentence to follow you and it does in terms of duration, but in terms of how they effectuate that sentence, the same thing would be if they interstate contacted you to serve your prison time. If you went from a really progressive state and they They had shortage of bed space. And if Vermont had to farm you out, which is one of the states that does for people out of interstate compact, and you get to Alabama, and you tell the people in Alabama that when you’re serving your prison time, that when I was in Vermont, I had this list of privileges and you show them your Vermont prison Handbook, they do not care about that person handbook for robot, you’re not in robot, and you will be incarcerated and wear the uniforms, and you will have the privileges that the Alabama Department of Corrections give you. And that’s the same thing under supervision, you will have the privileges, if any, that the state where you’re being supervised affords to you while you’re being punished. And if they are not doing any extra conditionals to thwart the spirit of the compact. If they just put those conditions on you individually. You have a complaint. But if those are standard conditions, as Ashley said, if you’re consistent with how they supervise their in state convicted people, there’s very little courts going to do about it. But you can’t sink a bunch of money into it if you like. But it would probably not be the best investment of capital.
Unknown Speaker 21:01
I just wanted to throw out and clarify a couple terms. We use CSL and that’s community supervision for life and pfrs. Our persons forced to register I did we somebody suggested that we start using that term. But it’s I like it. It’s my most favorite.
It’s one of our listener suggestions, and it’s it’s it fits and we probably ought to do it regularly because the listeners come in and they don’t know what a pf.
Teresa says she loves it.
Okay, so, actually, I just, we just had a little technical issue, we think we got resolved. So let’s try it again. Congratulations, all just magnificent victory that you had in the second Judicial District, which is Albuquerque, bernalillo. County, New Mexico, awesome, significant sexual charges, allegations. I don’t know the specifics of your case. All I know is that we talked about it and you were stressing about it. Go go into trial. And and and the client, the client insisted on going to trial because he wouldn’t go make no deal. And you you had what you thought was a very good plea offer and took it to the client. The client said No way, Jose, not taking that. So so you you, you took it to trial, you had a jury verdict and the jury, the jurors can take days, hours, different amount of times, how long was your jury out on this case?
Unknown Speaker 22:22
Well, my jury was out over the course of two days, almost seven hours. But to back up, there was no good plea deal that because I even went to a settlement conference. And unless they were going to just drop the sex offenses. I refused to take a plea in my client refused to take a plea. Now what he did absolutely insist on even though the judge tried to give us multiple continuances based on the pandemic and several other things that happened, my client would not except in a continuance. So we went ahead and we tried the case in the middle of this pandemic, and it was worth it. But they were out a little over seven hours, and it wasn’t even on those sex charges.
Wow. Well, let’s be specific. What can you tell us about the charges? What were the charges? And when you use the abbreviations try to explain what that means. And then when I when I get to charges, I want you to tell us how much exposure he was facing. And by exposure, I mean, if all accounts had been convicted convictions, if incidences had been posed consecutively, how much was the exposure that the court would have had available to it? So what was he charged with? And how much exposure was he was was he facing?
Unknown Speaker 23:41
So when we started the trial, he was facing two counts of criminal sexual penetration with personal injury, and one count of criminal sexual contact, then an aggravated battery charged with great bodily harm and two misdemeanor batteries. If all of those had run consecutive, and he would have been maxed out on him. He was facing almost 25 years. And he was also facing indeterminate parole on the criminal sexual penetrations and the criminal sexual contact. And that’s what we started with.
Okay, and then when you went when you got your jury verdict, what did you end up with in terms of conviction? So sad thing.
Unknown Speaker 24:22
So the criminal sexual contact and two of the battery charges I had directed verdict out, which meant that after the state put on their case, there was not enough evidence for it to even reach the jury. So all we were left with going to the jury were two counts of criminal sexual penetration and the aggravated battery great bodily harm, and then I got in an intoxication defense. By the time everything was said and done. He was convicted of the aggravated battery, great bodily harm, and he faces a three year exposure.
So he went from 25 to three
Unknown Speaker 24:58
And I think you told me you had made an offer to the state even though they didn’t make an offer. And what did you offer? To try to resolve the case? Do you mind say,
Unknown Speaker 25:12
Sure, I offered them the aggravated battery and to stack the batteries. And then he had another outstanding case on something completely unrelated. I offered to give them nine years of jurisdiction, but I would not take a plea to the criminal sexual penetrations in the criminal sexual conduct, or I would have pled we could have come up with other charges, alternatives. And I would have given him that kind of jurisdiction, but absolutely no, in no uncertain terms, where are we taking the place? The criminal sexual penetration?
Well, that leads to my next question, because we got 10,000 listeners out there, and let’s say different number they’ll regret having entered into plea agreements with the state. They have, what we’ve talked about is buyer’s remorse, I should have gone to trial. So we’re going to try to unpack about rolling the dice and going to trial. And since you’ve been on both sides as a prosecutor, and now as a defense attorney, you can probably unpack this better than anybody. And so I want to go through some various components of what you’ve evaluated, I kind of went through my ideas of how, how a case would be analyzed, when I’m consulting with attorneys, these are the things that I know we’re looking at. But you could just work off my list or you can go from your own but but I’d like to unpack what if everyone? Well, this his first question, what if everybody would just go to trial, the system would crash? What was the answer that if everybody went to trial, what would happen?
Unknown Speaker 26:39
Oh, it be impossible. If everybody went to trial trials, people would be sitting in jail, waiting for trial, especially because here we do what’s called a pre trial detention, and we hold people until their trial. And there would be sitting in jail for years and years and years, just even trying to do a couple of trials. They’re having to bring in other judges here right now. So it’s, it’s not feasible, but everything go to trial. But if a case is close, or there’s a good defense, or you’ve got nothing to lose, let’s say they make an egregious offer, and they’re offering him nine years, you’re like, you know what, I’ll roll the dice, I could get that after a trial, then roll the dice go to trial.
So well, you chose to roll the dice where there was considerable exposure here. So so let’s go through some of these factors that you that like I said, I know that when I’m consulting, we look at we evaluate the strength of the prosecution’s case, what does that mean, when you when you’re evaluating the strength of the process, we look at the elements to have to prove the strength of their cases, I can prove this. Explain that to the to the audience. What do we mean by that?
Unknown Speaker 27:48
Sure. So when you’re evaluating the strength of the prosecution’s case, and in this case, I’ll use a few specific examples. I interviewed the complaining witness, I interviewed another person that had a recording of some of the actual incident, I interviewed the officers and of course, the person who had done the physical exam on the complaining witness. And then I flat out told the prosecutor at that point, I said, you have problems with your case. And the prosecutors response was there’s problems with every case. And I said, Okay, let’s go to trial and see how big your problems are. So that was part of evaluating the strength of the prosecution’s case, in my mind, it was a 5050. It could go either way. And it was going to be a he said, she said case, which we’ll talk about a little later. But that was enough for me to roll the dice. There’s different percentages and different attorneys. In fact, the attorney that had it before me not to call him out, wrote the notes when he transferred the case to me saying basically, it was going to lose if we went to jury trial, and I just didn’t believe that. So it does depend on the attorney as well.
Okay, now, you said you interviewed witnesses. Now, that’s not is not an option available in some jurisdictions. But you did do that. What did you determine in terms of the credibility, we talked about credibility? In my mind, we’re talking about how well they’re going to testify how believable so what did you determine in terms of credibility of the witness? That would be that would be the primary witness at trial? What did what was your analysis?
Unknown Speaker 29:15
I believe she wasn’t credible. I believe that she was either lying or mistaken about some really weird things, which made me not believe the rest of her story. And it was stuff that was kind of common sense. And I figured if I put her in front of a jury or at the State Theatre in front of a jury, that they weren’t gonna believe her either and they didn’t. They flat out didn’t believe her.
And, and, okay, so we’ve got we’ve got credibility is an issue. What happens? How is that handled if the person in the course of investigation if the accused has made a statement to the police, and they’ve signed a statement, and in particular, if they’ve been mirandized? Would you have had the same outcome? Or have I gotten since I don’t know the details of the case? Did your client make a statement to the police and did you have overcome a confession.
Unknown Speaker 30:03
Oh boy, did my client make a statement to the police. So part of the state’s case and what they rested on was an hour long. And I wouldn’t even call it an interrogation, interrogation was basically my client spewing stuff to a police officer after he had been arrested, voluntarily talking to him and telling him everything under the sun. However, in my case, from the start, he said it was consensual sex. So and then he didn’t talk about the fact that he beat her up. So what we really had to overcome was whether the jury believed that it was consensual sex, and also that he didn’t tell the officer that he beat her up, which we were saying in trial he did. So I had to walk a very, very fine line on that statement, and determined how we were going to proceed and how we were going to address those issues. But from the start, my client made a very big statement. And I told him, I said, if you’re ever in a situation, again, don’t talk.
Well, well, assuming that that it was not he said, she said, but and not only listen, I he said, she said, the issue of whether the sex occurred was not in question. It was whether it was consensual, but say the issue had been whether the sex was non consensual, and your client had made a statement? Would that have almost sunk your case?
Unknown Speaker 31:27
Yes, it would have. Because our whole defense was that it was consensual, and the the battery the effect that he beat or happened after we had an explanation for it. But they if they would have made a statement and said, No, I pulled her out of the car, she was saying he pulled her out of the car, tackled her and then raped her. He was saying, No, we had sex in the car after they had just met and they were drinking. And then she did some things that caused him to blackout any better. And that was the version that the jury actually ended up believing. But if it wouldn’t have been for that, and there would have been more evidence, and she would have been more credible. And then my client made a statement said yes, I pulled her out of the car, and I raped her, it would have been a whole different ballgame.
So those listeners out there, many of them already already past that point. But But making a statement when when you have two different outcomes. So in our case, and what we’re trying to illustrate here is it’s just simply having the courage to go to trial, it’s not all the considerations, we’re going to get into more. But oftentimes, your cases suck by actions that you’ve taken. And so ahead, he made a statement, what would you have done in terms of trying to suppress that, and what what about high viable with, with what emotion to suppress have been.
Unknown Speaker 32:41
So actually, in this case, the prior defense attorney made a motion to suppress that statement, because he felt it was very damaging, I thought a little bit differently. But he did make a motion to suppress and it was denied. Even though my client was in custody and sitting in a jail cell, when the officer questioned him, the problem was that he voluntarily made that state. And he videotaped him. And he talked to them and gave him all those and and never, he never stopped talking to the officer.
Okay, so. So a motion to suppress the point we’re making is, they’re difficult to have granted and you hit really have to climb up a long rope to get a suppression granted in it. So it’s better not to make the statement than to put your lawyer to the position of trying to suppress the statement that you’ve made. And when you consider going to trial, what do you what considerations do you make in terms of the jury, but potential jury the pool? Do you look at the the intelligence level, the sophistication level? rd, are all jurors all the same? If you’re in Clovis, New Mexico? Are you going to get the same package or you’re gonna get here? bernalillo County?
Unknown Speaker 34:00
No, definitely not completely depends on where you’re at. So the makeup potential jury, we were really worried about because of the pandemic because you don’t get the same jury makeup that you do before this before COVID-19 happened. And we sent out special questionnaires about whether people could wear masks for five days, which we believe the trial was going to take if they there were other special questions about if they had ever been abused, or they use somebody that had been abused and things like that. So right off the bat, we struck 20 of the potential jurors before we ever got to court. The state I sat down and just struck them. The with regards to just general jury makeup done in Clovis. It might have been a different outcome here. I figured we at least had a 5050 shot up north no telling and then Georgia juries, no telling what I was banking on was that they were going to hate the complainant witness so much. Because she got into a car with somebody she didn’t know and drink With them right around the corner and drank and then stuff happened that they might actually blame her and believe that she brought this on herself if in fact, they believe the section is non consensual.
So what what would your analyzing, going to trial? We’ve talked about the jury as a backup. What about the judge? The Mexico’s what are the few states that I think maybe the only state I’m aware of where you can excuse the judge the Fed that can do that? And what do you would you make a different decision? If you had just retired judge, Ross Sanchez, or someone like Ross versus you had judge Brown who was a former prosecutor and is a very well respected jurist, does that play into it to go into trial, who’s it who they’re going to be trying the case before.
Unknown Speaker 35:53
So in normal times, it does. But New Mexico, as soon as the pandemic hit the cheap, Supreme Court Justice here did away with our ability to excuse judges. So that knocked out that you can even do a little bit of foreign shopping, neither side can. The other thing is because of the way they’re not splitting up the jury trials, the assigned judge may not even be the one that actually tries it, they just pan it out. So even if you’ve been dealing with, let’s say, Judge BROWN All this time, by the time we get to trial, we didn’t know who the judge was actually going to be. But we had already committed to go to trial on it. So in normal times, yes, I do consider who the judges and what kind of rulings I’ll make. However, we don’t have that luxury anymore. And we just had to roll the dice and just hope for the best.
And you ended up? I mean, you’ve been practicing long enough, I could name some judges that you would not have wanted to try this case before. But I don’t think it would serve any purpose to do that. But But the point is that a good attorney, a good legal team, you’re going to look at a plethora of considerations and and if a case has high profile, and I don’t know if this one was but if a case is high profile, what does that do to the equation and an analysis of how that case is going to play out.
Unknown Speaker 37:21
So it’s funny that you asked that because this case wasn’t particularly high profile might have gotten a blurb in the news, somewhere along the line, but it wasn’t big hope high profile like one that I have coming up in the next month or so. And we’re going to have to quiz the jury a lot differently. And this one’s judge brown out the jurors, if they had heard about it, read about it anything like that, you may have to do a change of venue if there’s too much publicity. We actually in the other case, had to do a gag order against the state in two different jurisdictions because they were going to the press on everything and that other case, and they were going to paint the jury. So it is a big consideration of a high profile case. Plus, if you have a judge that isn’t nearing retirement, or you have a judge that’s up for reelection, that those high profile cases tend to make them make different rulings, it shouldn’t. But they do because they’re concerned about how the public’s going to view them. If they go easy, or they make a ruling that’s unpopular, and the state goes to the press. So there’s there’s a lot to consider in a high profile case.
And and that doesn’t the state generally allocate a little more resources to a high profile case, because their reputation as a prosecutorial entity is also on the line. My observations have been that they find way to channel more resources to those cases, you were that side of the equation. Does that happen in your office? Did? Did you get more? Did you receive more resources in a high profile case?
Unknown Speaker 38:45
Yes, actually, I did. And in that other high profile cases, exactly what you’re saying. I went into go do a hearing and there was me and my client, there was an entire packed courtroom with the press and everything. And there were no less than five prosecutors from two different agencies and their bosses on the other side, trying trying to fight the motion against me. So they do they absolutely are resources into it. They pay a lot more. It’s
Unknown Speaker 39:16
it’s an uphill battle.
So well, let’s talk about this jury that were out seven hours and they weren’t talking entirely about the sex. What? What was the makeup of the jury? I think it we had our conversation prior to recording. You told me that there was a really surprising makeup. So describe the jury, what did you get?
Unknown Speaker 39:37
So in 25 years that I’ve been doing jury trials, and I’ve done hundreds of jury trials, the average age of the jury is somewhere between 45 to 65. Depending on which part of the state you’re in this jury, we only had three people over the age of 40. And everybody else was younger than 30 with the exception of like to people who were in their early 30s. And when we pick the jury, we basically did it on the questions and everything. And the average age of the jurors were right around 25, which was really shocking. But they did a great job. And it turned out the firm and that they picked was not one of the older people that I expected it to be. It was actually the foreman was about 23.
And, and, and I know that sometimes their interaction with the jury after that after the verdict. And did you did you consider this to be a very intelligent jury compared to? I mean, I’ve seen some doozy juries, people have had to be before, what was what was, and that that is so important, you really need to consider that if you’re in a farming community, a small community where that that’s all they’ve done all their life, and very few people have anything more than a high school or less education, they are going to be predisposed to believe what the experts are telling them. And they’re not going to feel that they have the expertise to combat. And they’re going to say, Well, if they say they’d done it, I reckon they’d done it. And you would need to consider that when you’re making your decision to go to trial, would you not?
Unknown Speaker 41:20
Yes. And in fact, we asked both the status, I asked if the state was in a worse position that I was on this question, but asking them how much evidence are you actually going to need? And overwhelmingly, they were like, it isn’t enough for the complaining witness to testify. It isn’t enough for us to hear an officer testify. We want scientific evidence. We want other evidence. We want physical evidence we want a lot before we’re going to convict somebody. And they said that unanimously in borders. So I was I was pretty happy that they were holding it to that standard and not the folder here. So they’ve done it standard.
Would you just briefly use that term border? Would you explain what that means? So people that have never done a trial?
Unknown Speaker 42:05
Sure, right here is the French for to speak. And what it really means Okay, both lawyers will go in there and say, what it really means is we’re asking questions, and getting answers in an effort to pick a fair jury. But really what both sides are trying to do is pick a jury that sympathetic to their side of the story. So as part of it, you’re also educating the jury a little bit about what the trial is going to be about. And if you have a real issue with the trial, that’s your time to start asking the jurors because if somebody answers and says, Oh, I have a problem that you don’t have DNA, oh, I have a problem that you don’t have this, or I have, I believe that everybody that accuses somebody of rape is, is telling the truth, there’s no reason why would they lie? Those are things that you find out during that voir dear process. So it’s a really important component, but it literally just means to speak to the jury and ask them questions.
Well, as a defendant, there’s there’s a couple of decisions that they make. One is whether they’re going to go to trial or not. And I guess the other one is whether or not they’re going to testify. What decision did your client make? And how did you come to that decision in terms of whether he testified?
Unknown Speaker 43:17
So we believe from the start that he was most likely going to have to testify for a couple of reasons. Because in like I said, it was a he said, she said case in this. So if they put her on the stand, and then they didn’t hear from my client, even though they’re not supposed to take that into account, because he has the right to remain silent. And the judge said about 50 times that I can just sit there, we don’t have to do anything, and the state has to prove the case. However, in this case, we felt it was important that he explained some of the things that he did not explain adequately during his his confession or his statement to the police. The other thing was that the details were consistent with that statement that he made about the consensual sex and all the details. And then we felt it was important to put him in front of the jury. Now, even right up until the time where he took the stand to testify, we were still going back and forth about whether we really really needed it, especially after half the charges had dropped off. But I was also putting up an intoxication and mental illness defense on the aggravated battery, which could have dropped it down to a misdemeanor. And we felt it was important for him to testify about how intoxicated he was as well. So with that, I put him on the stand. But most attorneys will tell you that they will not put their client on the stand. It’s it’s almost universal. They’ll tell you don’t do it. Too many things can happen. For us it went very well. But there was also a lot of prep work involved in that in terms of making sure that he understood only to answer the questions I asked him and not just go off on a tangent. So it worked out well for us but it is a very difficult decision for attorneys and clients to make
And I guess I’m going to start wrapping up here. But our people are going to want some advice, particularly those listeners who are have charges pending and what did when when you’re making this monumental decision about to accept a plea, or to go to trial? And we’ve gone through a whole litany of considerations, but But what would you tell them to do, as as succinctly as possible to help make that decision, so you won’t have as much buyer’s remorse.
Unknown Speaker 45:31
So the first thing is, if you are in a position to hire an attorney, make sure that attorney actually understands the charges and sex charges and what is required for proof and also make sure that they understand registration obligations. And then the next thing that I would tell them is, for me, and some attorneys will never ask you, if you did it, I ask my clients every time I want to know the whole story, so that I can formulate a theory about what we need to do in a case. So be honest with your attorney, as honest as you can be, even if it’s bad, your attorney is not there to judge you if your attorney is there to figure out how to mitigate any damage, if there is like, for example, if you made our confession, and you really shouldn’t have to tell them about it, so they can deal with it and make an adequate assessment of the case. But it really, really comes down to picking an attorney from attorneys will tell you Oh, yeah, I’ll charge this much. But they always intend to plead the case. So ask your attorney, I might want to fight this, I might want to go to trial unless there is a really, really good plea offer. Are you willing to take this to trial and ask them from the start? Because if that’s what you want to do, and I mean, there’s so many considerations, as Larry, as you pointed out, as to whether you take the test to trial or take a plea. For example, if, if the State offers a plea, and there’s no jail timing, you can get a conditional discharge in New Mexico, which means you do not have to register that might be worth not going to trial for but in some of the other cases where they’re like, no, you’re going to plead to discharge, and then you’re going to have to register and then you’re going to be on this indeterminant parole, that might be a good enough reason to take it to trial. So a lot of considerations. But first and foremost, make sure you’re honest with your attorney, and that you pick a an attorney who is well versed in cases like this.
Well, I would add to that I agree with that i would add to find out how many trials they’ve done in the last couple of years, because you’ll find out that very few attorneys have that are taking large sums of money, because they’ll tell you, I’m willing to go to trial. And then magically, as you get close to the day of reckoning, they’ll tell you really to play this out. So ask them how many cases they’ve tried in the last year or last two years? And if they have, if they don’t have any recent trial experience, I would be leery of going to trial with someone who has not done a trial. I mean, it Don’t you have to keep your trial skills sharp by actually doing trials actually.
Unknown Speaker 47:58
Yes, you do it. It’s not like riding a bicycle and you don’t do it for a few years. And then you come back, it’s actually difficult you forget a lot about a lot of stuff. And then the rules of evidence change. They’re not supposed to change that often. But they do you have local rules. So also make sure your attorney is practiced in front of the court that you’re actually in because they’re often local rules and customs, that if your attorney doesn’t know how to do it, they’re going to be at a disadvantage. So absolutely ask those questions that your attorney very, very well before you give them a single dollar.
And they will, they will tell you that they have done trials. But if you haven’t tried a case, like give you give you an example of DWI, when actually when you started practicing 25 years ago, DWI were handled completely different than now. So if you had not done a DWI trial in 25 years, you would have Not a clue if you did if you hadn’t stayed abreast of all the changes in terms of the law. And what we how we handled AWS now because what you do 25 years ago is out the window. Would you even take a DWI case, but would you even take it to the FBI case? It’s been so long since since I don’t think you would you were at the 13th unit duty of your prosecutions Did you?
Unknown Speaker 49:16
I haven’t done them in so long. And then I got one recently assigned to me. And the it wasn’t because it was a DWI, there was another charge but I got the other test dismissed and have to play them to DWI. And the poor client asked me they said well, what do I have to do as part of the DWI? And I had to turn to you there. Luckily, there are a ton of people who just do DWI in New Mexico and say what do they have to do? And I looked at the statute, but yes, you’re absolutely right. It would have it would have been different if it was going to go to trial.
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So well, I want to tell you, I really appreciate you coming in here Saturday evening on very short notice and spending some time with us. Hey, Larry,
I would like a couple questions from listeners.
Sure, I didn’t realize that.
Um, so first was from Michael says, question for actually having been a prosecutor in South Carolina where I was sentenced, I was told the prosecutors were mandated by the Attorney General to maintain a 94% 95% conviction rate or they will lose their jobs. What is your opinion on something like that? Ashley?
Unknown Speaker 51:11
I think that’s completely wrong. Not Not that that is wrong, that you’re saying that that’s what they require. I just think ethically it’s wrong. And the reason I think ethically is wrong, I’ve said on the program before is that prosecutors take an oath to uphold justice, Justice does not mean getting convictions. Justice does not mean prosecuting every case. justice means looking at every single case individually and determining what is best and balancing the rights of the accused with the rights of the public.
All right, I think that covers that one pretty well. And then Paul asks us At what point should they stop interviewing you during mine? I asked for a lawyer seven times. They even wrote that in the statement a few times, they either rewarded the question or went on to the next one. And he said then follow up. He says I was scared to make a bad decision. I figured he asked me for a lawyer would stop the interview. I didn’t know the law. So I thought they were doing right at the done.
Unknown Speaker 52:07
No, there’s nothing stop the interview immediately upon you asking for a lawyer. In fact, my client in his interview, and this one mentioned that he might want about an hour into the interview, I might want to speak to a lawyer and the officer said, Okay, we’re done. And said, No, no, I didn’t say I wanted a lawyer. He said, Nope. It’s enough that you even said that. That’s how they’re supposed to handle that. That’s what
I that’s sort of what I thought so then, I mean, I think his case happened in Wisconsin. I don’t know that jurisdiction even matters, but I’m pretty sure that’s where that all went down. Hmm. Is there any recourse that somebody would have like that? Does that like call into question their, their their case?
Unknown Speaker 52:50
any of that should be a motion to suppress? Because I mean, there’s clear clear case law, on your right to counsel and your fifth amendment right. And there that is definitely like, here, I don’t know about Wisconsin, I can’t speak for other jurisdictions, but that would be grounds for suppressing the whole statement. The second anything after asking for a lawyer, but if you ask multiple times, and they continue to talk to you, the entire statement would probably be thrown out. But that’s that’s about the only recourse there is.
Yeah, now that doesn’t make the case go away at all situation, because they may have enough evidence, despite your confession, that would just be the icing on the cake. But, but it could, it could severely damage the case. If they had a weak case and you You did a confession, and that’s usually when they will push the hard for confession is because they don’t have a strong case. Remember this if they need you to confess, they don’t have a strong case. If they’ve got an airtight case, I can tell you, we’re booking you to jail. Have a great day, we’ll see you at trial because they don’t need you to when they say that things are going to go easier it’s gonna go easier on them to convict you. And I remember a case this goes way back to ancient history and nobody cares about it, but I do. There was a contrast in jurist jurisdictions and but but I’m trying to illustrate a point rather than just the fact to have a good memory. But the point is to contrast and how they, how they do things that jurisdictions. There was a high profile case in Boulder, Colorado, and 1981 in that era. And the the the the suspect had had left boulder and go to Florida. And boulder detectives went to Florida to interview them and they were assisted Of course by the Florida detectives in Boulder actually went by the book. I’ve committed Alex thunder, who’s district attorney and the establishment there many times and boulder immediately did what they said we’re done. But Florida said nope, we ain’t done here. We got a few more questions and they kept pushing and that was case of tattoo Bob Landry. And, and the district judge in Boulder suppressed the statement made by Landry because he asserted It has right in Florida continue do the interrogation. That’s the difference between the jurisdictions, bolder do better. Florida had had been doing things the way that they’d always done it. And they said, we go, we don’t keep going
to go back. What was this person’s name?
tattoo Bob Landry.
Okay. I just wanted to make sure I heard that right.
So well, you can Google
Unknown Speaker 55:26
it, it’ll probably come right. I will pass on that for now. I have enough stuff going on over here with all the technical challenges. So Yep.
Yeah, he, he got he got suppression of his of his state. But ultimately, they convicted him because they still had a pretty, pretty good case. So the point is your case won’t necessarily go away. But you don’t want to strengthen the case the state has against you that we can she would plead negotiations, it does not make you have a stronger hand by giving them a stronger case. It does give someone a stronger hand, but not you.
Unknown Speaker 55:57
Okay, right. And it’s funny that, that you should say that because of what actually what actually came about in the trial was the officer explained his interrogation techniques. And he said, The first part is open ended questions, just trying to see how much information that my client would tell him. The second part was him actually bluffing. And he admitted that he was completely dishonest about how much DNA they had and what evidence they had to try and get my client to confess to more. So the moral of that story is, don’t believe that they have anything. And Larry is 100%. Right? If they have to push that hard for confession, they don’t have it, because otherwise they just put you in jail, and they worry about it later.
So But well, Ashley, was the thousands of listings we have someone may want to contact you. And do you want to give people some method to contact you? Because there will be questions and perhaps maybe someone might want to retain you because in addition to the the famous lawyer up in New Jersey, excuse me, Connecticut, that got an acquittal, a year or so ago. You have a court acquittal down similar charges. So you hit you have joined that club of elite attorneys. So how would they contact you?
Unknown Speaker 57:24
Sure. Anybody that wants to reach me?
Unknown Speaker 57:28
They can reach me at Ashley sh L. Ui at Zenn la VN la w.net.
Okay, well, thank you. Thank you so much, Ashley, for being with us. And congratulations, on behalf of the audience. In particular for me say this is the business I’m in. It’s a fantastic win. I don’t know anything about the case. But I know that it’s a lot of stress to put on a trial where the stakes are so high. So So kudos to you. I guess
we can we can we move over to the new york times article, Texas police officer charged with murder in fatal shooting of a black man.
Sure that shouldn’t take but a moment because it’s one of those where I don’t know guilt or innocence. I know that the stick Texas what they call the state authorities, I forget the name of their state police, they’ve they’ve they’ve salt charges. And the guy’s been arrested. And he’s entitled to his presumption of innocence and his due process. But at least there is an accountability happening. He is being held to account for shooting the person in the back. And the person was just calmly walking away as I understood it. They didn’t choose to be engaged with the police and they decided to walk away.
Oh, all right. This is the dangerous.
I don’t I don’t see a problem with that. Do you
know not a problem with that at all? I think you should always a discharge your weapon into somebody back. That seems like that would be the best way to approach it.
So but but yes, at least But see, we this is all the people of my persuasion want. We want good, clean, thorough investigations. And we want accountability where there is questionable behavior, that a real investigation takes place. And that if charges are appropriate, that they face charges, and that they be held accountable, then trust is restored in the police when you know that the police don’t have a license to do anything they want to do. That’s all that’s all we’re asking for.
I I’m with you. I’m with you. All right over at Forbes IRS must pay $100 million worth of 1200 dollar stimulus checks judge orders and prisoners lawsuit does this roll back to the previous stimulus. The cares act where a bunch of our people and people in prison didn’t receive funds.
That is correct. See, we talked about it on an episode that I can’t remember the number of course but but we talked about whether or not This was a case where there was nothing in the statute that precluded them. And we talked about it like in the Social Security Act, a person who is in custody for being convicted of a felony. While they’re in custody, they don’t receive Social Security. And then one previous demos payment, they specifically put in the act that people serving type were were excluded. They didn’t do that in this. They did, but they might have intended to, but they didn’t. And the IRS decided on its own from administrative adarsha. I actually not inertia because actually, they had plenty of inertia, they issued the directive to the prisons to intercept these checks, and to prevent people from receiving these payments. And, and that’s where the problem, because the law is what you would like it to be the laws what it actually was, and there was no exclusion. These people may have been in prison after they had earned the stimulus, and you didn’t really earn it. But you know what I’m saying baby entitled to it, if you worked all the way up to April 2 2020. And you’re in prison on June 14, when they when they set your payment out? Why would you be excluded? Unless Unless there was a specific exclusion in the law there wasn’t. This is the correct ruling. I would expect the Trump administration to appeal it because it’s very popular to say that we’re not going to give these freeloaders money off the backs of the taxpayers. And they’ll probably try to to to overturn the lower court ruling but for the well but it’s a great victory.
And then over at the Brennan Center for Justice Amy Coney Coney kind of keeps on coming up. I know why Amy Coney Barrett’s judicial record in criminal justice cases. And I did not get a whole lot of chance to read this. But I think that you have a pretty short way to sum this up.
Well, as, as we’ve learned, and as I’ve said, we don’t know what they’re going to do when they’re on the bench. Occasionally, people surprises. And we had surprised with an appointee under george HW Bush with sudo was recommendation. And we ended up with his name’s escaping me, but we don’t know what they’re going to do. But what we do know is based on this judge’s writings, that she is not particularly sympathetic to, to rights of incarcerated, but it looks like on gun rights, she’s very strong, which will, which will be nice for our province, our people are not allowed to hold weapons. That’s the only problem with that. And it looks like she has had some sympathy for, for for the Drug Enforcement overreach on a search warrant. So so it’s a mixed bag, or most everything. When it dealt with criminal defendants rights dealt with rights of incarcerated. She’s on the wrong side. But it looks like if you’re a gun supporter, she’ll be just fine for you. And it looks like also that if if if there’s a issue of police overreach it to search and seizure, you might get some consideration from her. But we truly don’t know. It’s one of those things. If we were doing the proper vetting, we could actually pose those questions. But under the circumstances, nobody wants to vet this person because she’s already been vetted for the appellate court. And now we should just rubber stamp and put her on the Supreme Court. That’s kind of the attitude.
I understand that as well. That seems to be the plan. And then courthouse news, California justices take up extent of voter back to parole expansion. I don’t have any idea what’s going on here. But you’re gonna explain it.
This is one of those propositions where, where I believe that that specifically the language of the law did not carve out the pfrs exception, but administratively, they did proposition 57. And the if, if they did carve out, it wasn’t a complete exception for all pf ours. But the way the California Department of Corrections is interpreting it is that anybody who has to register is as is they don’t, they don’t get the benefit of Proposition 57. So to the credit of Janice Baluchi, the Alliance for constitutional sexual offense laws, Janice brought this case against the California Department of Corrections and Rehabilitation. And we’re going to find out if you can administratively exempt people from the law. Again, this is similar to what was done with the checks. You can’t do that the laws the law, if if the legislature had wanted to have everybody that was required to register be dotted details the benefit of 57 they would have written that that should have gotten into proposal, but Jerry Brown vowed that, that nobody would have the people who had sex for conviction would not get any benefit from early parole. And by God, they have stuck to what Jerry promised that when the voters passed this, he said they ain’t gonna get no early release on my watch. There you go. And when this when this case is over, I’d love to have Janice explain all the nuances, but but I’m glad she’s doing it and I’m pulling for the success and maybe the Supreme Court of the state would say it’s sorry. The Department of Corrections cannot do what they’re doing.
And almost finished Florida from the Tampa Bay Times Florida ruled felons must pay to vote. Now it doesn’t know how many can Florida’s amendment number four was supposed to restore the voter voting rights of up to 1.4 million felons. Instead, it might be America’s big business. Biggest case of voter disenfranchisement.
Unknown Speaker 1:05:53
so by 2014 voters in Florida voted to allow felons to have their voting rights restored, based on an amendment got amendment number four would have to be almost like Florida initiated their constitution. Okay, well, then we have amendment number four that had to follow suit almost immediately after that, that prevented felons from voting. Well, I guess in the, in lieu of all the technical problems, we will close up the show. But before we let everyone go, I would like to thank our new patrons. We had a Bradley has increased his patronage and thank you so very much. And then we also have a new patron, Adam, and in being very generous, thank you so very much, really, really appreciate it. And I think we’re pretty much done then Larry.
Well, how do people support the podcast and contact us and leave questions, we got to tell people that for at the very least,
of course, of course, registry matters.co is the website and the phone number that I use to talk to Ashley this evening is 747-227-4477 you can email us at registry matters. firstname.lastname@example.org. And of course, Larry, the best way to support the podcast is what
patreon.com slash registry matters and and do your gross pay. I thought
we were gonna have people take out second mortgages.
Well, that’ll come next week.
All right, then. Larry, as always, thank you so very much, and I really appreciate that you are here to share all of your insight and wisdom.
It’s my pleasure. That is why I am here.
Good night, Larry.
Unknown Speaker 1:07:34
You’ve been listening to F YP