Via America’s LawyerMike Papantonio and Trial Lawyer Magazine editor Farron Cousins discuss how federal courts have been flooded by Republicans under Trump’s presidency, filling over one hundred vacancies left by Obama. Nearly a quarter of the Federal Appeals Court is now comprised of Trump appointees, stoking fears that these packed courts may veer from general interpretations of the law. Also, Mike Papantonio is joined by legal journalist Mollye Barrows to talk about the sentencing of former Dallas police officer Amber Guyger for the murder of Botham Jean in his own apartment last September. While Guyger’s 10-year sentence may be a win for police accountability, is there a lingering bias surrounding the conviction of a white woman in uniform?


*This transcript was generated by a third-party transcription software company, so please excuse any typos.

Mike Papantonio:             Barack Obama left office with more than a hundred vacancies on the federal courts and Donald Trump and the new Republicans in the Senate did not waste any time filling these seats. But who’s picking these judges and what do they have to gain from these appointments? Joining me to answer that question is Farron Cousins from the trial lawyer magazine. Farron, this, if you take a look at this case, at this situation, I think 15 years ago on Ring of Fire, we started talking about the idea that the Democrats were paying so much attention to social issues. You know, is this judge, is this judge good on gender? Is the judge, is he good on civil rights? Is he good on social issues? And we ignored the fact that the people that were being appointed were the best friends of corporate America, giving them virtually everything. Trump has taken this to a whole new science, hasn’t he?

Farron Cousins:                  He has, and to be honest, I think it’s a little unfair to give all the credit to Trump here. I think most of it is Mitch McConnell. This has been Mitch McConnell’s dream for, for decades now. I mean, ever since the guy came into the Senate back in the 80s and he found a, a useful person in, in Donald Trump because Trump, again, he’s a guy who didn’t come from politics. He doesn’t know the judges out there. He doesn’t know who’s where. He doesn’t know the groups. So Mitch McConnell looked at this as a bit of a blank slate. And so Mitch McConnell, through his friends over at the Federalist Society, have just been pumping these judges to Donald Trump saying, this is a good person. Here’s their qualifications. Here’s how they’re going to help business. Let’s go ahead and appoint them. McConnell says, look, I’m going to go back to the Senate. I’ve got all my folks here ready to vote. We’ll get them fast tracked. You’re good to go.

Mike Papantonio:             Okay, here’s, here’s what, what, here’s what the Republicans figured out and they figured it out by the way that the Federalist Society came together. They figured out it doesn’t make any difference who the president is. It doesn’t make any difference. It doesn’t make any difference who, who’s in Congress. All that matters is at the end of the day, how is that law, how’s that congressional mandate interpreted. Executive order, take it away if we don’t like it through the courts. Congressional, congressional action, take it away if we don’t like it through the courts. So it took the Democrats forever to figure that out, to figure that out. As a matter of fact.

Farron Cousins:                  I don’t think they’re there yet.

Mike Papantonio:             I don’t think they’re there, I really still don’t think they understand this. As a matter of fact, you’ve got Trump who’s made what, 45, 43, 45 appointments just to the appeals court. That’s not even talking about what he’s done at the trial level. It’s been a disaster for consumers, you know. What, what is your take?

Farron Cousins:                  Well, right now I think we’re at 25% of the total makeup of the appellate court is now Trump/Mitch McConnell appointees, who again are coming from these pro business groups. The Federalist Society is the one vetting these people and picking these people and they’re getting their money from the Koch brothers. They’re getting their money from all these right wing foundations that are funded by businesses, and that’s why, and to be honest, when we look back at some of the appointments Barack Obama put in there, as you said, yeah, they’re great on social issues. They’re going to be the best civil rights judges out there and they’re also going to rule with businesses 100% of the time.

Mike Papantonio:             A train, a train wreck for consumers.

Farron Cousins:                  Right.

Mike Papantonio:             I can tell you even the Obama appointee, the Clinton and Obama and, you know, yeah, there’s some great judges there. But if you look at, if you look at why we evaluate judges, we ought to start thinking about how are they doing on consumer issues. Not whether they rule on whether a male and female can use the same bathroom. I mean, I’m talking about kitchen table issues, dining table issues that affect whether your child can go to school, whether you’re going to have a job. These judges, whether they’re Democrat or they’re Republican, are horrible on, on, on, on consumer kinds of issues. Now let me, let me tell you something. Give me your idea of, of how this has shifted so dramatically. How have the Republicans taken this and they’ve, they’ve really made it work for them? I mean, how have they, how have they gotten here? What was the difference between what they did and what we saw with Obama?

Farron Cousins:                  Well, what the Republicans did was they obviously they had the perfect storm. You have the presidency and you have the Senate. House of Representatives doesn’t matter.

Mike Papantonio:             Right.

Farron Cousins:                  When it comes to the courts and because of that, Mitch McConnell said, listen, we’ve got a big majority, we’re going to change the blue slip rule, which means…

Mike Papantonio:             Well talk about that.

Farron Cousins:                  Right, the blue slip rule was where if the judge was from your state and you being the Senator from there said, no, I don’t like this judge. In the past, traditionally they would just say, okay, well it’s your state. We won’t pick this person.

Mike Papantonio:             We can hold it up.

Farron Cousins:                  Right.

Mike Papantonio:             You can do whatever you want to.

Farron Cousins:                  Mitch McConnell said, nope, that doesn’t matter anymore and because of that, they can now fast track these people. They don’t have to get approval from both sides. They’ve got their big enough majority that everybody can get an up and down vote and go in.

Mike Papantonio:             50 votes, not 60 votes.

Farron Cousins:                  Right.

Mike Papantonio:             Yeah.

Farron Cousins:                  And because of that, we have seen this fast tracking and it is because, as you said, Republicans know that the presidency is going to change hands all the time. Senate will, House will, these are lifetime appointments that will never change until that person retires, dies or gets impeached, which has only happened a handful of times in history.

Mike Papantonio:             Okay, quick reminder, Robert Bork, Scalia, they were the heart of the entire federalism movement. They were the people that came out with this nonsense called originalism.

Farron Cousins:                  Yeah.

Mike Papantonio:             Even though they like to say, yeah, this is a good idea. We don’t see the Republican’s following originalism at all, but, but here’s the point. They, they, there’s a guy that is Leonard Leo is a name that comes up a lot. Leonard Leo is the guy that controls the appointments through the Federalist Society. He controls virtually all the appointments we’re seeing with Trump and in here, and the truth is until we’re able to get the Democrats to understand the appointments matter even more than the Supreme court, even more than the presidency, I think we’re going to be in the same boat.

Farron Cousins:                  Well, and we’re looking at, I mean, just real quick to throw a number out there, about 80 cases a year at the Supreme Court, 50,000 decided in these lower courts. So you tell me which one is more important.

Mike Papantonio:             Yeah, 80 versus 50,000 I’m, I’m going with 50,000.

Mike Papantonio:             Former Dallas police officer, Amber Guyger has begun 10 year prison sentence for the murder of Botham Jean, who officer Guyger had fatally shot after mistaking his apartment for her own. Back in September of 2018 is when this occurred, but a few wrinkles during court proceedings have raised eyebrows throughout the media. Legal journalist Mollye Barrows is here to examine this case a little further. You know this honestly, what a weird case.

Mollye Barrows:                Yes.

Mike Papantonio:             I try, you know when anytime I listen to facts like this, I try to analyze it from both sides. Give me your analysis. I, it’s just a peculiar case.

Mollye Barrows:                Well, just to outline the facts for anybody who may be unfamiliar. Like you said, last September, September of last year, she was off duty, but she was still in her uniform. She was headed home to her Dallas apartment complex. Heading into what she said she thought was her apartment, but it was a mistake. She was actually one floor off. She lived one floor beneath the apartment that she accidentally walked into is what she said, and so that apartment belonged to Botham Jean and she said that the lights were off. He had been in there watching football. She thought she was in her apartment and that she shot him because she thought he was a burglar. So it’s interesting they had the, the guy who lived directly across the hall from the victim testified that he had just met him earlier that day and he was a nice guy. He often heard him singing in his apartment, whether it was gospel songs or, you know, his, whatever favorite music was. And he had heard the altercation. He said it sounded like two people who were surprised by seeing each other essentially. And that, that he heard them talking at the same time and then he heard the gunshots.

Mike Papantonio:             A wonderful, this, this, this young man that was shot was a wonderful person.

Mollye Barrows:                Yes.

Mike Papantonio:             By every standard, I mean.

Mollye Barrows:                An accountant, educated.

Mike Papantonio:             Oh just, just…

Mollye Barrows:                A good person.

Mike Papantonio:             A wonderful person. So now we’re hearing one of the key witnesses in the case that they were actually shot dead.

Mollye Barrows:                Yes.

Mike Papantonio:             While the case, while the case was pending. Tell me what you know about that.

Mollye Barrows:                Actually not while it was pending because he testified.

Mike Papantonio:             Okay.

Mollye Barrows:                That it was his, he was, he was a key witness in the case itself.

Mike Papantonio:             Oh, all right.

Mollye Barrows:                Describing who this guy was, like you said, hearing the altercation. So she was just sentenced, but he was shot to death last Friday night outside in a different Dallas apartment complex.

Mike Papantonio:             Any connections that they’re looking at?

Mollye Barrows:                Of course there are rumors, there’s talk in the community. The Dallas prosecutor handling his case and his name is Joshua Brown, basically said that, you know, he was looking into. Details are sparse, but that he had only praise for Joshua Brown because he spoke up and testified at the trial, which he said is often difficult to find someone who will speak up in cases like this, especially when victims are black or it affects the minority community. In this case, it was particularly, it sparked protests because you have this white police officer who claimed that it was an accident and she was initially only charged with manslaughter. She walks into the apartment of, wasn’t her place, an unarmed black man. She’s being charged with manslaughter and the minority community was basically like, you gotta be kidding us. You know, what do we have to do to show you that, you know, black lives matter too sort of a thing. And so there was a protest and then she was later charged with second degree, well charged with murder and she was convicted of second degree.

Mike Papantonio:             Yeah, haven’t we seen a lot of that lately.

Mollye Barrows:                Yes.

Mike Papantonio:             We, it takes a protest to get the court system to do what they’re supposed to do, to get the police.

Mollye Barrows:                She was fired too.

Mike Papantonio:             Yeah. To get the police. Yeah, She was fired.

Mollye Barrows:                Right.

Mike Papantonio:             Everything that happened should have happened.

Mollye Barrows:                Yes.

Mike Papantonio:             But I’m looking at the way the media is handling the sentencing on this. They’re saying it’s sympathetic, it’s forgiving. She’s going, she’s going away for 10 years.

Mollye Barrows:                Yeah. She could have gotten 99.

Mike Papantonio:             Yeah.

Mollye Barrows:                And she could’ve gotten as low as five.

Mike Papantonio:             Right.

Mollye Barrows:                So the family was very pleased and going back to the sympathy, the compassion, you know, the victims were black. The judge in this case was black. And there was some criticism for the judge because after she handed out this 10 year sentence, she gave the officer a Bible and the woman asked, you know, Amber Guyger asked her for a hug and she said, she kind of stood there for a second thinking this is awkward, and she said that she asked her again and she said, at that point I had to decide, is it my responsibility? This is the judge saying, this is what she told reporters. Is it my responsibility? She goes, I decided then that it was my responsibility to be compassionate as well and the family had also forgiven her.

Mike Papantonio:             This, this family is wonderful. I mean, you go back and look at this story.

Mollye Barrows:                It’s heartbreaking.

Mike Papantonio:             It’s, it’s a terrible, I mean it’s a, you got this really, really decent young man.

Mollye Barrows:                Right.

Mike Papantonio:             Terrible incident that takes place. The family forgives her, an open court goes and hugs her. There’s a lot of parts to this story that, that to me, let real quickly.

Mollye Barrows:                Yes.

Mike Papantonio:             What is her best argument on how this happened? What, what is it that caused her to go and start firing?

Mollye Barrows:                You know, she wasn’t drunk. Her toxicology reports came back clean. She basically says she was distracted. The prosecution didn’t buy it because they said there were several indicators that should have, you know, made her realize that she wasn’t in the right spot. He had a red doormat at his door. She didn’t have one.

Mike Papantonio:             Had she just finished her shift?

Mollye Barrows:                She’s said her key, she had just come off work. That’s why she was still in uniform, but she was off duty. And they think that that’s partially why the jury was more willing to convict in this case because had she been on duty, typically juries are less inclined to second guess an officer’s decision in the line of work of when they decided to shoot.

Mike Papantonio:             Yeah. This doesn’t fall in with.

Mollye Barrows:                But this, as you said, isn’t part of it.

Mike Papantonio:             But she had finished, was it a night shift that she had finished?

Mollye Barrows:                Yes.

Mike Papantonio:             Okay.

Mollye Barrows:                She had definitely finished a long shift.

Mike Papantonio:             Come off of night shift, walks into the wrong apartment and opens fire.

Mollye Barrows:                Yes.

Mike Papantonio:             Terrible story.

Mollye Barrows:                Yes.

Mike Papantonio:             But I got, you, when you, when you watch this story and you understand it, you will love this family. This family is just unbelievable.

Mollye Barrows:                And as a former prosecutor, it’s gotta make you feel good to see that there is, because usually things like this will destroy a family.

Mike Papantonio:             Oh my god.

Mollye Barrows:                So they’re trying to keep that from…

Mike Papantonio:             This is a terrible, terrible, terrible tragedy.

Mollye Barrows:                From happening.

Mike Papantonio:             Thank you for joining me. Okay.

Mollye Barrows:                Yes, thanks Pap.

Mike Papantonio is an American attorney and television and radio talk show host. He is past president of The National Trial Lawyers, the most prestigious trial lawyer association in America; and is one of the few living attorneys inducted into the Trial Lawyer Hall of Fame. He hosts the international television show "America's Lawyer"; and co-hosts Ring of Fire Radio, a nationally syndicated weekly radio program, with Robert F. Kennedy, Jr. and Sam Seder.