Steve Palmer [00:00:00]:

All right, we are lawyer talk and we are back on the air. Off the record, but on the air we're going to take on. I've gotten lots of questions today about or not today, but in recent weeks because this judge up in Wisconsin is on trial. And this is Milwaukee County Circuit Judge Hannah Dugan.

Troy Henricksen [00:00:18]:

This is big in the news.

Steve Palmer [00:00:19]:

When it came out, this was huge because this took on all sorts of political issues, Test judicial authority. There's lots of stuff going on. You want to give us the facts. This is like a law school.

Troy Henricksen [00:00:30]:

I know.

Steve Palmer [00:00:31]:

Stand up and deliver the facts.

Troy Henricksen [00:00:32]:

This is how it works. I guess this judge has this immigrant come in for some type of court case deal.

Steve Palmer [00:00:40]:

It's cattle call, probably.

Troy Henricksen [00:00:42]:

Yeah.

Steve Palmer [00:00:42]:

You know, judges have defendants in their courtrooms all the time and they show up for pleas and sentences and pre trials, whatever it is. So that's going on.

Troy Henricksen [00:00:49]:

Yeah. So to my knowledge is nothing about immigration. However, it comes to our attention that there is some immigration agents outside with an administrative warrant to arrest the guy that's in our courtroom.

Steve Palmer [00:01:02]:

So what we have is somebody who is not in the country, at least in theory or by allegation lawfully, we have an unlawful immigrant in the country.

Troy Henricksen [00:01:10]:

Yeah.

Steve Palmer [00:01:10]:

So I don't know what the politically correct term for that is, but somebody's not allowed to be here.

Troy Henricksen [00:01:13]:

Yes. And then the judge decides to go outside, actually approaches these two immigration agents and confronts them, says, hey, do you have.

Steve Palmer [00:01:21]:

By outside you mean outside the court?

Troy Henricksen [00:01:22]:

So. So she's in the courtro room. She goes in the hallway outside the courtroom. So not outside the courthouse, just a hallway. There's like security camera footage.

Steve Palmer [00:01:30]:

And this is like A Few Good Men. These are the facts. They are not in dispute. Yeah, these are the facts. So in law, when we talk about facts, we mean these are the facts.

Troy Henricksen [00:01:38]:

So she goes out into the hallway outside the courtroom and approaches the two immigration agents and just confronts them about the administrative warrant. At least that's what's being told. I don't think there's audio on the camera footage. And then after this, the judge goes back into the courtroom and she takes the defendant and sneaks them out the back door to try and avoid the immigration agents.

Steve Palmer [00:02:00]:

You added a word in there. Sneaks them. She lets them out the back door.

Troy Henricksen [00:02:04]:

She lets them out the back door. You're right, I threw sneak in there. And then the. The gentleman's getting away and the immigration agents see it and they chase him in the street and they get them just outside the courthouse. And I think the Only thing I really left out there was the judge had, like, a memo from that courthouse saying that they won't allow immigration agents, like, arrest.

Steve Palmer [00:02:28]:

That was a proposed policy by the administrative judge in that court in that county.

Troy Henricksen [00:02:34]:

Policy.

Steve Palmer [00:02:35]:

That's. That's what I'm reading. So what? Just to sum that up, you've got a defendant in a judge's courtroom. The defendant is also an illegal. In other words, not allowed to be here, doesn't have citizenship and is not. Doesn't have a green card, whatever it would be. This defendant has been targeted by ICE agents who are there to arrest him and deport him. Presumably you have a judge who goes out and says, look, guys, not in my courtroom.

Steve Palmer [00:03:06]:

And they say, yes. Huh, because we're the feds.

Troy Henricksen [00:03:11]:

Yeah.

Steve Palmer [00:03:11]:

And the judge says, okay, well, we'll see how that goes. Goes back, finishes the case, and allows the defendant to leave out from a door, like the back door of the courthouse or the courtroom.

Troy Henricksen [00:03:26]:

It's kind of like how our courthouse is here, where, you know, that, like, hallway area.

Steve Palmer [00:03:29]:

It's like, we should talk about this, because I'm envisioning this, because I've been to lots and lots of courthouses over the years, and there's almost always, like, where the judge would come in and take the bench. There's typically a door on that wall like that. We'll call it the judge's wall. That attorneys, judges, staff members, police officers, the cool cats get to use that door. But civilians, for security reasons, generally can't. Defendant, for instance, would not be allowed to use that door unless invited, sometimes in handcuffs, to go through that door. So when we talk about going out the back door, this is the, like, the metaphor we always use. I had a sensing day, and the judge took my client out the back door.

Steve Palmer [00:04:13]:

What the. What I'm saying is my client got arrested and dragged out the back door by the cops. Sometimes that's the same door that the judges and lawyers use to get in and out and then back behind is. You're correct. It's typically the judicial offices where lawyers hang out. Sometimes the jury deliberation room would be back in that area.

Troy Henricksen [00:04:31]:

Yeah.

Steve Palmer [00:04:32]:

And we have, like, our. There's not. We. But there's elevators back there. And, you know, different courthouses have different security. But typically, lawyers can use that. Now there are courthouses where I can't even use those doors or, you know, they keep it pretty locked up tight. But the argument here on behalf of the federal government.

Steve Palmer [00:04:51]:

So the federal government charges this judge. Yep. With obstruction of official Business, meaning we are. We, the feds were engaged in official, lawful business in this area where we were allowed to be because we're the feds. And you obstructed us. You judge took actions that prevented us federal agents from doing our job. I think.

Troy Henricksen [00:05:12]:

Yeah, but I think something we should touch on and it confused a lot of my friends is a lot of my friends don't understand the difference between like, federal and like, state. Like in their head, they're like, why aren't they allowed to operate in there? Like they're all on the same team. They don't really. A lot of people just don't understand there are actually two different sovereignties. Right. Isn't that what it is?

Steve Palmer [00:05:29]:

Yeah. I mean, look, you can have a federal crime and you can have a state crime. Sometimes the feds have. Well, I'll give you a perfect example. Bank robbery. You can go commit a bank robbery in Columbus, Ohio, Franklin county, and be charged by Franklin county authorities. So the Franklin county prosecutor say, we're going to indict this guy for bank robbery. And then at the same time, you could get a federal assistant United States attorney or even a sitting federal.

Steve Palmer [00:05:54]:

United States attorney charge somebody with federal crimes. This has happened. Chalvin's a case where that happened. The guy was charged with murder. And Luigi too. Luigi is another one. That's happened. Happens a lot.

Steve Palmer [00:06:07]:

But I think what your cohorts are getting at is like, why does it happen? Well, sometimes the feds and the state don't agree. Yeah, a lot of times they do. So I represent a lot of folks in federal drug cases. And you know, sometimes there's a task force that's made up of both federal and state court law enforcement officers. See, I've got DEA ATF agents, and then you've got local county guys, maybe a couple guys from the cities and a couple of the bergs around. They sort of populate these task force, these task forces, these tasks for whatever it is. They populate it with various law enforcement. The idea being that everybody's going to contribute from their.

Steve Palmer [00:06:50]:

From their little agency and that's going to be helpful to the whole. So say a task force makes an arrest. Somebody's got to decide where that goes.

Troy Henricksen [00:07:00]:

Yeah.

Steve Palmer [00:07:00]:

And the feds are going to say, look, it's our case because why it's also committed in a state. Generally we in when. When the system is working, I guess, efficiently, there is some sort of accord, an agreement between the locals and the feds about who's going to take it, you know, in federal dope case, sort of like pornography, it's like, I can't define when it goes federal, but I know it when I see it. So bigger dope cases, multi state stuff.

Troy Henricksen [00:07:29]:

Yeah.

Steve Palmer [00:07:32]:

Trucking, truckloads of pot, whatever. Like bigger quantities, those generally go federal and the state authorities take other stuff. So typically there's an agreement. Child pornography cases are like this, too. There's a task force, and sometimes the federal government is making it their thing that they're going to prosecute the child pornography cases. Sometimes the state government is making it their thing, but typically it's not in both places. It could be, yeah. Ironically.

Steve Palmer [00:08:01]:

But back to your, your, your cohort's questioning, like, what are the feds doing there? Why don't they. Well, they're not getting along because clearly the Wisconsin folks at the local level are saying, we don't agree with you, Mr. Trump, and your immigration policies. So we're not going to play.

Troy Henricksen [00:08:15]:

Yeah.

Steve Palmer [00:08:17]:

And this is a culmination of that political conflict. And call it whatever you want, but that's how I see it. Yeah, that's how I see it. You got a judge who, politically speaking, says, I don't like Trump, I don't like these policies. I don't agree with it, so I'm not going to play. You've got a, a administrative judge who has proposed a policy in that county that says, we're going to make it a policy that prohibits arrests in open court. And there might be good reason for that. Right.

Steve Palmer [00:08:46]:

You don't need the disruption.

Troy Henricksen [00:08:47]:

And that's not like here, where we're at both our common pleas and our immunity, they both did the same thing. They both have those rules. And I mean, the problem is you use the word proposed policy, so I.

Steve Palmer [00:08:59]:

Don'T know that it was ever adopted. And then you have. The next question is, so what? Yeah, because. All right.

Troy Henricksen [00:09:09]:

I mean, does a policy of Trump. The law. Like, I just don't understand.

Steve Palmer [00:09:13]:

We have this thing called the Constitution, the United States Constitution, and in it is something called the Supremacy Clause. And in that clause it says the United States is the supreme law of the land. And, you know, I'm not going to dig into this because that's a show of its own. But, yeah, you know, the feds are the supreme law of land. I've had a situation where I was defending a dope case in state court, or I was defending some sort of case in state court, and it involved, I sort of tangentially ventured in, as part of my defense, into a federal dope Investigation. I issued subpoenas for some federal agents. Like, screw it, they're people, too. I.

Steve Palmer [00:09:55]:

State court subpoena to a federal agent to come in. My client wasn't charged with a dope violation, but somehow a witness, one of the witnesses, was under investigation. And I figured there was a lot of impeachment material involving that witness, so I started beating the grass, sending out subpoenas. Interesting. What happened. A U.S. attorney showed up. And I remember this discussion in a judge's chambers.

Steve Palmer [00:10:19]:

And the U.S. attorney, who was a buddy of mine or colleague of mine, I had cases against him. Not this one, but with cases against him. And he just says, well, judge, look, with all due respect, the federal government's not going to listen to a state court judge telling us what to do. And I was pretty young at the time. Like, you know, that was back in the days. Like, why can't I do it? I'm just going to do it. And I still.

Steve Palmer [00:10:39]:

I still have practice that way. And I remember watching the judge sort of raise his eyebrows like, okay, and had nothing to say about it. So the feds weren't going to. Weren't going to give up the. The goods and just weren't going to show up. And what were you going to do about it? I. I don't know what authority the Wisconsin court here would have or any other court would have to keep the feds out.

Troy Henricksen [00:11:07]:

Yeah.

Steve Palmer [00:11:08]:

And. And so really, what if the feds didn't listen? If they say, troy, you're not allowed in court, you're going to be arrested for trespass. But if they say, federal agent, you're not allowed in court. I don't know that the. You know, I don't know if it's official business, particularly. So anyway, let's. Let's leave that aside. This judge ultimately gets charged with obstruction of official business or crimes like that.

Troy Henricksen [00:11:33]:

Yeah.

Steve Palmer [00:11:34]:

Preventing the feds from doing their job, what do you do to defend that? And this is a federal trial. This judge is on trial, criminal trial. They put a sitting state court judge on federal trial for a criminal case.

Troy Henricksen [00:11:47]:

I mean, your argument, I feel like your defense is you just. You were following the policy. That's it.

Steve Palmer [00:11:52]:

Which is really a. You're really focusing on mens rea, I guess.

Troy Henricksen [00:11:57]:

Yeah.

Steve Palmer [00:11:57]:

So law has. I always say this. You have. In order to have a crime, and this is going way back to common law times, you need two things. You need an act or a failure to act when there was a duty to. Or you need. And plus, you would need something up here. Some sort of mens rea or a mental thing.

Steve Palmer [00:12:15]:

So, you know, this is my pen. If I accidentally take a pen from a clerk, of course. And I get all the way back to my office and I'm looking at the pen, did I commit theft? Well, I know because when I took the pen, I didn't do it with the specific intent to permanently deprive the owner of that pen, some clerk of courts, of their property. Now, if I keep it after that, that's a different story. But at the time, you were never a server, right? What's that?

Troy Henricksen [00:12:39]:

You were never a server, were you?

Steve Palmer [00:12:40]:

I was never a server. I have borrowed and kept many pens.

Troy Henricksen [00:12:43]:

It's a high crime to take a good pen.

Steve Palmer [00:12:45]:

I believe me, that's why you don't use good. Anyway, so the mens rea here would be, did this judge do it on. I say purpose, because this is a term of art and the lawyers are going to jump all over me. But when I, when I talk to jurors about it, I say, you know, what's the first thing when you accuse, when one brother is accusing the other of doing something. He did that on purpose. He meant to do that. Like somehow that's, That's a big deal. Yeah, that's mens rea.

Steve Palmer [00:13:11]:

Well, this judge is going to be arguing, look, I, I was just following the policy preventing this stuff from happening here. So I didn't have the mental intent to obstruct justice, but rather I was acting in accordance with a local policy. Fed's going to say bs. Yeah, we don't care. You still knew and you still understood exactly what you were doing. And if you're following that policy, the policy is unlawful and you shouldn't be following the policy anyway. It doesn't give you a pass.

Troy Henricksen [00:13:39]:

And you did know because you're a judge.

Steve Palmer [00:13:42]:

You're a judge.

Troy Henricksen [00:13:43]:

You know the law. Like.

Steve Palmer [00:13:45]:

That's right.

Troy Henricksen [00:13:45]:

Yeah. So that is a little tricky.

Steve Palmer [00:13:47]:

Now another argument's going to be, I didn't. This is what we always do. I was just taking, you know, we're just doing what we always do. Well, this may be true, but as we talked about when we jumped off the cliff here, most courts, I've been like, you just don't take people out that way.

Troy Henricksen [00:14:08]:

No.

Steve Palmer [00:14:09]:

And I, I don't know that court. Maybe they do there. So this would be a fact that we would want to explore for defending the case. How many other people get to go out that door and go down the elevator in the backside and not go out the front door. I have had exceptions made for my clients before big media cases where I've got a swarm of cameras waiting out front and I've got my client or a witness or somebody who just shouldn't have to face that type of music and we get permission to go out the back door and, you know, any man doesn't want to face the media, better head on out the back. That's, I've done that before, but I, I, I sense that that's not what happened here.

Troy Henricksen [00:14:45]:

No. So I like gambling here. How do you think this case is going to go?

Steve Palmer [00:14:52]:

Well, before we do, let's, let's, I want to address two more things. The, the f, when we started talking about this case off the air, literally off the air, I, I, I said I wonder about immunity. That's the first thing I would be exploring.

Troy Henricksen [00:15:04]:

Oh yeah.

Steve Palmer [00:15:04]:

Does a judge have immunity from prosecution in a federal case like this? According to the federal judge here, the answer is no.

Troy Henricksen [00:15:12]:

So what, what is the immunity argument? I'm not tracking this.

Steve Palmer [00:15:15]:

Well, a public official has immunity. So if you sue police, there's some, you know, sue a public official and they're acting in the capacity of their public office, they would have some immunity. Now that's generally for civil liability, not criminal. Now, and immunity doesn't always mean that you're completely immune from civil liability either. It's a different topic. But the question is, can, can a sitting judge be charged with a federal crime? Yes. The judge, the federal judge here says yes. That argument doesn't hold water.

Steve Palmer [00:15:44]:

The other thing that I think is, I think there were some questions about whether this judge could get a fair trial there. Now here's where it gets dicey because this is, I like, what am I, what you said, what are the, what am I arguing? I am arguing politics here. Yeah, that's what this is. This is about politics. And the defense actually sent out juror questionnaires in advance of trial asking for information about politics. Who do you vote for? Do you agree with Trump? Do you not like Trump? And if I'm defending the case, I'm going to be all over this. I'm going to be like, listen, I want a bunch of Trump hating, card carrying Democrats on my jury. And not only that, I want Democrats who don't agree with Trump's immigration policy on my jury.

Steve Palmer [00:16:33]:

And this is an interesting time to sort of step out of the role. And I don't care if I agree with Trump's immigration policy or not. It makes no difference. Defending the case is what you do. So that's what they. Now, look, there's a decent argument from the government, I'm sure that those questions are irrelevant. Yeah. To the situation.

Steve Palmer [00:16:57]:

Why? Because I'm getting at one concept here. We've talked about it in the, in the course and context of your Sixth Amendment right to trial by jury. What it's called jury nullification.

Troy Henricksen [00:17:10]:

Oh, yeah.

Steve Palmer [00:17:11]:

Called jury nullification, which is this sort of nebulous notion that even if the government proves their case, even if somebody is actually guilty, the jury will nullify it with a not guilty verdict. And what they're really saying is we don't agree with the prosecution, politically speaking in the context of this case. So I think that's really where the defense is going. And what they're doing is they're, they're putting. Maybe the best analogy is they're putting pegs in the wall upon which a jury can hang a not guilty verdict. And what do I mean by that? Well, we can always say the judge didn't act up here with the right mens rea. But really what the defense is, I think, hoping for is that this judge or this jury rather, doesn't agree with the immigration policy. And this is a way to sort of smack at it by letting this judge go.

Steve Palmer [00:18:02]:

And on the government side, it's sort of like a test case in the other direction. Like, what's the bounds of the government authority here? Which is completely absurd because a criminal case doesn't establish that. It's just was a case proved in a particular situation on a particular day in a particular courtroom with a particular juror, particular defendant. That's it. But I think it speaks more than that in the context of our political wins right now. So back to your quote. What do you think the outcome is?

Troy Henricksen [00:18:30]:

I think, I think she's. I think she's not guilty or it's a hang jury. Just because I think with the whole policy and like the, almost like the law of it, it seems a little murky. And I could see them if I'm at a jury, I'm saying, guys, I don't.

Steve Palmer [00:18:48]:

You like the pegs?

Troy Henricksen [00:18:49]:

Yeah. Well, I'm sitting there, I'm like, guys, I don't, I don't actually know. And the thing is, I don't think we should be like, I have, I have some doubts about this at that point. I like, we just can't convict somebody off this. And that's why I think. And Also politically wise, 12 jurors, you get one that's, you know, really hard on one side, one really hard on the outside. I wouldn't be surprised to get hung. Yeah, I wouldn't be surprised.

Steve Palmer [00:19:09]:

But now a couple of things that we'll throw into the milkshake just to make fun or just to have some fun with it. We practice all here in Columbus, Ohio. And if I go seat a federal jury, they're not all coming directly from Columbus, Ohio. Now, look, anybody who's seen the electoral map in recent years, it's like a bunch of red with little spots of blue. And little spots of blue are dense population clusters. Yeah, Right word for it. So you're gonna like it's. But in Columbus, Ohio, you're not going to just get a bunch of jurors from this area.

Steve Palmer [00:19:45]:

You're going to get more. You're going to get. You're going to get jurors from southern Ohio like our, our jury selection or the, the southern district of Ohio in federal court would go all the way down to like southern Ohio. So you're going to get a bunch of rural jurors.

Troy Henricksen [00:20:00]:

Yeah.

Steve Palmer [00:20:01]:

So not the jury nullification argument. Gets a little more difficult that way.

Troy Henricksen [00:20:06]:

Yeah.

Steve Palmer [00:20:06]:

You're going to end up with perhaps a little more diversity on the jury, to use it. To use a catch word. Absolutely. Like real diversity. So I don't know how it comes. I suspect it wouldn't surprise me if it hangs. Yeah, it wouldn't surprise me if it's a conviction and it wouldn't surprise me if it's an acquittal. But I think it's going to be a conviction.

Steve Palmer [00:20:26]:

I'm predicting it. I'm predicting it.

Troy Henricksen [00:20:28]:

If you'd like to place bets, I'm.

Steve Palmer [00:20:30]:

Just kidding, believe me, I'm. And pardon me, is only predicting it because you predicted something else. So we can have a little bet. So look, tell us your thoughts, give us shoot it in the comments and after the verdict, we'll come back and give a recap and maybe, I'm sure all the crack journalists will be all over interviewing these jurors. We'll figure out what really happened. We'll talk off the air, on the record. On the record, off the air until now.