Latest / Brian Thomas / Brian's chat with Judge Napolitano 10/7/2026

Transcript

Brian's chat with Judge Napolitano 10/7/2026 · Brian Thomas

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  Speaker 1: Starting to see some clearing westbound 275 at 5 mile
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  Speaker 1: and northbound 275 at 28 from the earlier accidents. Southbound
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  Speaker 1: 75 slows through Lachlan. Inbound 74, brake lights from just
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  Speaker 1: above Montana. Coming up next, a guest who just can't
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  Speaker 1: decide what national day to celebrate. It's National Kale Day.
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  Speaker 1: It's also Canadian Beer Day. Now me, I know what
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  Speaker 1: I'm going to do. The judge is next. Chuck Ingram, 55KRC,
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  Speaker 1: the talk station. Yeah, he's going to go with the kale.
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  Speaker 2: 830.
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  Speaker 3: 55KRC, the talk station. Of course, it is that time
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  Speaker 3: of the week I always look forward to. And I
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  Speaker 3: know Chuck Ingram does as well. He gets his intro.
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  Speaker 3: Judge Anadopalitana, welcome back to the morning show, my friend.
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  Speaker 2: He is so clever, and so are you, Brian. Good morning.
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  Speaker 2: A pleasure to be with you, although I can't see
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  Speaker 2: you today.
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  Speaker 3: I apologize for that, but I always say, without Joe,
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  Speaker 3: the show don't go. Now, that's not an insult to Danny,
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  Speaker 3: who's doing a great job of covering for the vacationing
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  Speaker 3: Joe Strecker, but when you oversleep, as Brian Thomas did
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  Speaker 3: this morning, and you're back on your heels anyway, it
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  Speaker 3: doesn't add to the fun when Joe Strecker's not around.
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  Speaker 3: So I've been kind of firing on half of my
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  Speaker 3: cylinders this morning, Judge, and I am glad to have
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  Speaker 3: you here to save me from myself. And you know what?
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  Speaker 3: Right out of the gate. And I love your column
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  Speaker 3: because this is something that I'm sure no one really
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  Speaker 3: gave much of a thought to. It's a headline. Prosecutor's
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  Speaker 3: Dilemma comes out at midnight. I'm fortunate to get an
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  Speaker 3: early copy of the column. But you start off with
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  Speaker 3: Ben Franklin.
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  Speaker 2: Excuse me.
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  Speaker 3: He's better than 100 guilty persons should escape than one
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  Speaker 3: innocent person should suffer. And that's kind of my point
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  Speaker 3: about the death penalty. I don't believe in the death
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  Speaker 3: penalty because I don't think the state should be able
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  Speaker 3: to take a life because sometimes they screw up and
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  Speaker 3: innocent people are convicted.
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  Speaker 2: Right, right.
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  Speaker 3: Sometimes because of a lynch mob effect.
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  Speaker 2: The death penalty because the government's power comes from the
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  Speaker 2: consent of the governed. And the governed don't have the
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  Speaker 2: power to kill somebody unless it's in self-defense. And a
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  Speaker 2: human being that's locked in a cage for the rest
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  Speaker 2: of his or her life is hardly an impetus for self-defense.
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  Speaker 2: Government killing spawns other people killing. You'll see that happen
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  Speaker 2: right after the firing squad execution of a very sick
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  Speaker 2: man in a wheelchair that President Trump just authorized. But
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  Speaker 2: what we're talking about today is Cornell and the dilemma
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  Speaker 2: faced by prosecutors. The prosecutors believe a crime was committed.
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  Speaker 2: They believe they know who the victim is. They believe
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  Speaker 2: they know who committed the crime. But they probably don't
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  Speaker 2: believe that they can prove guilt beyond a reasonable doubt.
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  Speaker 2: Can they charge these people? The answer under the law
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  Speaker 2: is very clear, and it's no. The government cannot bring
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  Speaker 2: a criminal case because the crowd wants one, because social
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  Speaker 2: policy demands one, because to quell an outrage, they can
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  Speaker 2: only bring a criminal case if they can prove it
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  Speaker 2: beyond a reasonable doubt and to a moral certainty.
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  Speaker 3: Well, how is it that a prosecutor can even make
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  Speaker 3: that determination? that I'm looking at the evidence and yeah,
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  Speaker 3: there's some pretty damning evidence here. However, any good defense
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  Speaker 3: lawyer can raise this as an objection point to the
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  Speaker 3: contrary statements, bring a reasonable doubt. This is an easy
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  Speaker 3: case to create reasonable doubt, but you know, we saw
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  Speaker 3: that 12 or that 11 to one jury verdict in
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  Speaker 3: that case where that woman murdered her three children and
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  Speaker 3: one man stood up against it. But you know, you,
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  Speaker 3: You can convince a jury with very, very emotional circumstances
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  Speaker 3: that a person's guilty even when they're not. That's the
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  Speaker 3: fear I have. But how does a prosecutor know ahead
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  Speaker 3: of time to make that determination? Because I hear some
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  Speaker 3: people saying, well, no, go ahead and at least give
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  Speaker 3: it a try, even though you do quite know if
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  Speaker 3: there's enough there to make a case, then why don't
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  Speaker 3: you go ahead and do it?
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  Speaker 2: They probably will just go ahead and do it because
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  Speaker 2: the prosecution is now in the hands of politicians. the
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  Speaker 2: governor running for reelection and the attorney general who runs
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  Speaker 2: for reelection, I believe, in two years. I'm not demeaning
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  Speaker 2: their intellectual honesty. I'm just saying they're going to be
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  Speaker 2: drawn to do what they think is most popular. The
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  Speaker 2: government has to make, professional prosecutors have to make a
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  Speaker 2: professional judgment. And if you've been a judge for a
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  Speaker 2: number of years or a prosecutor for a number of years,
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  Speaker 2: You have a good feel as to how this is
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  Speaker 2: going to go. You assign to senior prosecutors to make
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  Speaker 2: the case that there is enough evidence to prove guilt
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  Speaker 2: beyond a reasonable doubt. You assign to other senior prosecutors
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  Speaker 2: to make the case that there's not enough evidence to
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  Speaker 2: prove guilt beyond a reasonable doubt, and you hash it out.
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  Speaker 2: You don't attach your intellect to the one theory or
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  Speaker 2: the other. You have, as the chief prosecutor, an open
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  Speaker 2: mind based on the evidence, based on the law as
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  Speaker 2: articulated by your senior most assistants, and then you make
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  Speaker 2: the call. The public will not understand if they decide
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  Speaker 2: not to prosecute. The public outcry to go after these guys,
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  Speaker 2: even though apparently some of them just stood around and
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  Speaker 2: some of them are too drunk to remember what happened.
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  Speaker 2: And some of them can't be identified by the victim
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  Speaker 2: because she was too drunk and drugged. It's not an
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  Speaker 2: easy case to make a decision against prosecution that will
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  Speaker 2: be a popular one. And this is also a problem
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  Speaker 2: when the prosecutors are popularly elected as opposed to appointed
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  Speaker 2: by the governor, as in other states. In New York,
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  Speaker 2: prosecutors and judges are all popularly elected. So I can't
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  Speaker 2: predict which way it's going to go. If you forced
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  Speaker 2: me to predict, I would say she will prosecute because
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  Speaker 2: that's the popular thing to do. That's not the right thing.
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  Speaker 2: It's not the right reason to do it. If she
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  Speaker 2: believes the evidence can support guilt beyond a reasonable doubt,
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  Speaker 2: then she must prosecute. If she doesn't believe that, then
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  Speaker 2: she can't prosecute. Her political career be damned.
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  Speaker 1: Yes.
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  Speaker 3: That's the ethical obligation that's owed. I understand that. You know,
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  Speaker 3: pivoting over, Your Honor, as I'm hearing you, the concerns
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  Speaker 3: about getting reelected and the image in the public for
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  Speaker 3: these positions, what about the jury? I mean, I know
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  Speaker 3: voir dire is supposed to reveal biases in the jury,
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  Speaker 3: but this is a case that everyone is going to
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  Speaker 3: have heard about, and the lynch mob effect is out
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  Speaker 3: there in full view. That has a profound influence on
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  Speaker 3: the jury, and maybe jurors can also be convinced that, well,
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  Speaker 3: everybody wants this person convicted. And even though I kind
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  Speaker 3: of question the evidence a little bit, and I do
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  Speaker 3: have some reasonable doubt, I'm going to go ahead and
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  Speaker 3: convict him anyway because that's what everybody seems to want.
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  Speaker 3: That's a real concern these days of doxing and internet.
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  Speaker 2: That is a very real concern. I would think if
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  Speaker 2: she prosecutes on the basis of what we know about
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  Speaker 2: the case, half the case will be thrown out before
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  Speaker 2: it even gets to the jury because this poor girl,
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  Speaker 2: she can't identify who actually raped her. She is 100%
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  Speaker 2: sure she was raped, but she doesn't know by whom.
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  Speaker 2: One of the guys, she texted and said, I enjoyed
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  Speaker 2: being with you and Matt. I'm going to do it again.
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  Speaker 2: So there's a lot of countervailing evidence here, a lot
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  Speaker 2: of confusion, a lot of memories that are far from
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  Speaker 2: the precision we look for in criminal cases because they
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  Speaker 2: were influenced by alcohol and drugs. Now, let me say
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  Speaker 2: this for the victim. It is not uncommon for a
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  Speaker 2: victim of rape to feel such shame and embarrassment that
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  Speaker 2: her mental defense mechanisms have convinced her it didn't happen.
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  Speaker 2: And then those defense mechanisms eventually dissipate with the passage
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  Speaker 2: of time. I know this from psychiatric testimony that I
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  Speaker 2: observed it and in which I participated if the government
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  Speaker 2: didn't ask the right questions in my courtroom. So if
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  Speaker 2: they're going to put her on the stand, they're going
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  Speaker 2: to have to put psychiatrists on the stand as well
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  Speaker 2: to explain to the jury why she didn't say it
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  Speaker 2: was rape in the five interviews she gave in the
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  Speaker 2: weeks following it. but two years later believes it was rape.
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  Speaker 2: That does not mean she was lying. That is just
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  Speaker 2: the way the human mind operates to protect the body
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  Speaker 2: from the consequences of a horrific event.
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  Speaker 3: Understood, without question. Very complicated, but going back to the prosecutor,
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  Speaker 3: they have an obligation to everyone to make sure they
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  Speaker 3: have proof of guilt beyond a reasonable doubt. So if
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  Speaker 3: you had to call a tea leaf read on this one,
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  Speaker 3: you think they're going to move ahead, go ahead and
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  Speaker 3: do the prosecution in spite of the fact that some
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  Speaker 3: of the guys can't be identified?
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  Speaker 2: Correct. Correct. And then if anybody is acquitted or if
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  Speaker 2: the case is dismissed as to the ones that can't
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  Speaker 2: be identified, the burden of the public outrage will shift
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  Speaker 2: from the prosecutor to the judge or to the jury.
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  Speaker 1: The jury.
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  Speaker 2: But what juror wants to go through what this guy
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  Speaker 2: went through in the Clancy case, in my opinion, he
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  Speaker 2: made an intellectually honest and prudent judgment on the basis
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  Speaker 2: of the evidence before him. And he's been drawn in court.
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  Speaker 2: in the papers. Yes.
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  Speaker 3: And no one's speaking about the death of those three children.
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  Speaker 3: If they do, it's only parenthetically. It's all empathy for
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  Speaker 3: the woman, that poor woman, that poor woman who murdered
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  Speaker 3: three of her own children.
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  Speaker 2: Right.
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  Speaker 3: I don't get it. Judge Ann Napolitano. That's why I
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  Speaker 3: have you to talk about these important and interesting things.
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  Speaker 1: Yes.
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  Speaker 2: This is not exactly breakfast time talk, but I appreciate
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  Speaker 2: the forum, Brian, and I appreciate your fabulous questions on
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  Speaker 2: all of this. And next week, I hope to see
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  Speaker 2: you again.
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  Speaker 3: Well, absolutely, you will, assuming Joe Strecker decides to come
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  Speaker 3: back to work. And that is a big, outstanding question
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  Speaker 3: looming out in the world, Your Honor. Judge Ann Napolitano,
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  Speaker 3: Judging Freedom is his podcast. Usual cast of characters for Wednesday, sir?
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  Speaker 2: Yes, Colonel Douglas McGregor and Phil Giraldi. McGregor, very, very
• 10:53
  Speaker 2: gloomy about the duration of the Ukraine and Iran wars,
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  Speaker 2: and he'll explain why.
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  Speaker 3: I understand that. Anyway, Judge Ann Napolitano will be listening,
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  Speaker 3: checking out your podcast, judging freedom, and we'll talk to
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  Speaker 3: you next Wednesday, every Wednesday. I look forward to this
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  Speaker 3: time of the week. It's one of my favorite times
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  Speaker 3: of week, sir, and God bless you for spending time
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  Speaker 3: with my listeners and me on a Wednesday.
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  Speaker 2: Thank you, Brian. All the best to you and Joe
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  Speaker 2: and Danny. Thank you.
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  Speaker 3: Bye-bye. Thanks a lot. Danny's got a grin on his face.
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  Speaker 3: Judge Anapolitano, T41 right now. We've got some time to
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  Speaker 3: talk before the end of the program.
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  Speaker 2: Call me.