Nicholas Provenzo joins Chris Baker on Fountainhead Forum to discuss the Lindsay Clancy case, criminal justice, and The Objective Law Initiative.
The conversation examines juror privacy and media scrutiny; the insanity defense and the legal significance of mental illness; jury selection and deliberation; the differing ethical duties of prosecutors and defense attorneys; civil litigation, plea bargaining, and jury nullification; the distinction between judicial activism and an active-minded judiciary; legal education; and OLI's effort to ground law in reality, reason, and individual rights.
This is an external media appearance produced and published by Fountainhead Forum.
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Transcript notice: This transcript was generated automatically using speech-recognition and speaker-diarization models and has not yet been manually reviewed. It may contain errors in wording, punctuation, names, or speaker attribution.
Nicholas Provenzo 00:00:00: And if I were a defense attorney, I'd be worried if that was my client's defense, because I think that's a tough one. Depressed people don't get out of bed; angry people murder. So you've got to explain this to me.
Chris Baker 00:00:14: Buy my novel, Escape from the Village, from major booksellers online. Go to EscapeVillage.com. Subscribe to the Substack. Go to FountainheadForum.Substack.com.
Chris Baker 00:00:26: Support the forum. Go to BuyMeACoffee.com slash fountainheadforum. Thank you. This discussion involves a pending criminal court case. All defendants are presumed innocent until proven guilty in a court of law. Welcome to the party, pal. This is Fountainhead Forum 494. I'm talking to Nicholas Provenzo. He's founder of the Objective Law Institute.
Nicholas Provenzo 00:00:49: Initiative. We call it the Initiative. We thought I was going to give it a more active voice.
Chris Baker 00:00:55: Yeah, I agree. Both start with an I. I'm sorry about the confusion. Anyway, so Nicholas is here. We're going to talk about the objective law and also the rather unfortunate pending court case of Lindsay Clancy. So Uh, right now, you know, we're at the point where, uh, hung jury. We don't know what's going to happen next, but yeah. Uh, how are you Nicholas?
Nicholas Provenzo 00:01:18: Just fine. Just fine. How are you doing today?
Chris Baker 00:01:20: Yeah. So Nicholas, you got into Ayn Rand. How did you get into Ayn Rand?
Nicholas Provenzo 00:01:24: Oh, gosh. Um, I'd say in a meaningful way when I was in college, uh, I ran, I was a college Republican and then they weren't philosophic enough. So I set up this group called the American Collegiate Conservatives because I wanted to be more intellectual. And ended up doing a debate on drug legalization with some members of the Objectivist Club. And this was a public debate. We were all on stage and my Objectivist counterpart just absolutely defeated me. I was, you know, fresh out of the Marine Corps, red, white, and blue, true, you know, typical conservative. Drugs are bad. You don't want to do that. And, and he just basically pinned me on individual rights. What are individual rights? And, and, and should the government be throttling rights, uh, absent proof of a harm to you? So, you know, okay. You know, this is, you're doing this, taking drugs. This is hurting your own body. We might not approve of it. Maybe it's a bad idea. But do we have the right to forbid you from doing it at the penalty of punishment? And I was stunned because I thought that I went into my debate really well prepared. So it intrigued me exactly what was it that, in my mind at least, allowed this individual to get the better of me on the stage. And so you know all right the Objectivist Club what's that all about we end up sharing office space so the next year they put all these ideological groups together and through a lot of discussions and debates and finally coming to read uh I think the first book I read was Capitalism: The Unknown Ideal by Ayn Rand uh I came to agree with Objectivism and it was it wasn't easy I was a good Catholic boy and the church was part of my life but then to you know come to The realization that faith just doesn't work as a practical tool for proving anything and accepting that changed my path dramatically. So I'd say I give credit to the campus club program that existed in the early nineties. The individuals in this club who were absolutely willing to engage people and discuss and debate ideas. And then I'd pin it to my honesty where, you know, the truth is important to me. And a tool in my own life. So I was looking for the ideas that I came to agree with. Because again, what do you want to be? You want to see reality for what it is and make good choices accordingly. So that's how I discovered Ayn Rand and loved it ever since.
Chris Baker 00:04:03: Wow. Somebody actually changed their mind after a debate. Wow. That's shocking.
Nicholas Provenzo 00:04:08: Well you know what's interesting about that is that it didn't happen like it wasn't on the stage oh your syllogism defeated me therefore I will uh uh agree with you it took time uh but yeah exactly that that debate so I for me what it shows is getting your ideas out there is very important articulating your views is very important and that it's not an overnight process you're just gonna wow them in the in the aisles with your wisdom they're gonna have to go home and think about it not all will
Chris Baker 00:04:40: Yeah, so uh you know so you you know being an attorney you know I I do want to look at this Lindsay Clancy case and there are some things that I think are extremely troubling in all this uh right you know first of all and uh you know we want to be careful because this is still a pending court case and it's you know legally innocent until proven guilty but it seems as though she confessed to killing her three children right uh and the jury ends up being hung 11 to 1 and the sole person who says she's guilty is a Man, and I've also heard now that he's an immigrant from Haiti. But, you know, the fact is we shouldn't know any of this. The first thing I'd like you to touch on, you know, is the fact that the NBC TV station in Boston felt like it was that they should investigate this guy. What can you say about that?
Nicholas Provenzo 00:05:44: Well, yeah, I mean, outing someone because they were part of a controversial decision is troublesome. The court could have issued a protective order uh sealing people's identities it chose not to I don't know if it ever received a motion to do that I don't know exactly how that would work at the same time I mean, I can speak from my own experience. When you have a question of life or death, you kind of like people to explain themselves. And he's not obligated to. He's not obligated to say anything about his deliberations or his verdict. But you know wouldn't it be nice if someone could articulate one way or another you know this is why I saw the case as I saw it so that people could understand but again you know no obligation he's not a sacrificial lamb you know for public humiliation because he uh uh whether you agree with him or not you know he he he cast his vote and uh refused to uh dissuade on how he saw the case so yeah it's it's it's a it's a tough one I think that if he decided to to just like I I did my duty and I no longer wish to be part of the public discussion that's his every right for a media company to go in and and then out him in the face of that I mean I I think they could have asked him if he wanted to talk about it and if he said no leave it at that say you know he was approached and and and said no but to out his personal details and then his history and all, you know, it's all grist for the mill. That's that's weaponizing media. I think it's, it's not, it's not a good thing.
Chris Baker 00:07:30: Yeah. I mean, you know, we, you know, we, the term I believe is jury tampering.
Nicholas Provenzo 00:07:35: I mean, this is something, you know, Well, it's after the case, the case has been decided, but it's, it's, you know, it's a, it's a notorious case. It's what I would call a notorious case. One that captures the public imagination for, for better or for worse. And uh and and and then you know results in a verdict that people find controversial you know okay it's a hung jury so that means in this case there are 11 that wanted to acquit he was the holdout he clearly had his reasons uh what's his obligation to articulate those reasons I mean nice to have but not need to have um you know and then and then what comes next When a case gets public like this one has, it's always a question in the mind of the attorneys as to whether or not you can find an impartial jury because it'll have been discussed so much. Basically, what do you have to be? If I heard about the case, does that disqualify me? Does that mean that I'm going to be swayed by what I heard? We hear about things all the time. You would hope that A future juror would be able to keep that aside and focus on the evidence that's in court, but that also may be hard to do, particularly when people have strong opinions and tell you upfront, it should be this way or it should be that way. I mean I I'm kind of the view if I wasn't I mean I have my opinion but if I wasn't there sitting in the dock watching the witnesses hearing the testimony taking it all in and forming my own assessment based on the evidence presented in court you know how valuable is my finger wagging that it should be this way or that way really going to be I mean maybe to a point but not that much so you know I think I think I think I'd want a culture that respects the jury process, produces jurors that do their job well by engaging in a difficult process of making judgment, obeys the judge's instructions scrupulously, and if for whatever reason they say, I can't serve on this jury, they admit it up front and show their reasons. I'd want a clear, transparent, principled process. Do we have that? Well, you know, you be the judge. I'll put that to your audience. How about that?
Chris Baker 00:09:57: Well, you know, I'm also very much the belief is if there were problems with this juror, then this person never should have been called in the first place. They should, I mean, you know, I don't know if there's background checks on jurors or things like that, but That, that should be done before he can ever get on a jury.
Nicholas Provenzo 00:10:17: It's like, Well, that, but, but think about what you're saying there. I'll push back gently and I'll, I'll show you, I'll try and show my reasons. Okay. If you had a pre-screening that happened out of court. What's the nature? Who's the pre-screener and who does it favor? You have jurors that have to stand in impartial judgment. So both the prosecution and the defense have to be able to ask their questions. But if you had somebody screening them from third party, what's that third party standards? So really, you have to draw randomly. From the population of, you know, physically eligible jurors. So, you know, a citizen, a resident of wherever. And beyond that, then it's up to the attorneys to ask the questions. And I think, you know, that the process is called voir dire. Where the attorneys basically examine the prospective jurors and find out, you know, do you have a bias here? Do you have a bias there? Can you sit impartially? Are you impassioned by something in your own past that would make it very difficult for you to render an honest and fair verdict? Yeah. And that's a whole art of itself. The ability, you know, the skill of asking a juror the right kind of question in order to weed out people who are unsuitable. And unfortunately, I think a lot of people aren't suitable because what is really a good juror do? Apply the law to the facts of the case based on the evidence they heard at trial. And having to weigh that evidence the juror is the fact finder so they have to look at people's temperament the way they sound on the stand everything they know and uh about human nature and their understanding of the world in order to decide is this person trustworthy are they credible uh is this believable are there other possibilities that explain uh the events that have been claimed uh you know the whole nine yards that go into what I think should be a very thoughtful careful deliberative process but then you got the jurors I just want to get out of here or you know I got other things to do this isn't important to me well if justice isn't important to you good luck when you're on the dock so you know yeah
Chris Baker 00:12:26: Well, you, you, you, you probably have case, you know, but, but you know, when a jury usually has 12 and usually there's, you know, maybe, I mean, I I've been in that position where I got selected for a jury duty, but then I wasn't in the final 12. So that's a process where you can screen somebody out, you know, you know, to Nicholas, another, we don't know, you know, I suspect there are a lot of court cases where you have that one lone holdout and he just says, I'm, I'm giving up. Cause I want to get out of here. You know, that, uh, that probably does happen, you know?
Nicholas Provenzo 00:12:57: I imagine it happens. I mean, you know, typically what will happen is the jury, you know, they'll elect a foreman. The foreman will announce to the judge, we're at an impasse. The judge will try and find out what's going on without trying to sway the debate or the direction. Like, well, what's the issue? And then you find out, well, this juror says that they won't convict anyone who's the member of their race or their gender or something like that. Well, the judge might be able to have some, you know, quivers in his arrow. Uh in his in his in his backpack to arrows in his backpack to uh to deal with that uh you want the trial to go through you know it's expensive it's time consuming it's exhausting uh for all the parties to go through a trial so you want to have a successful fair trial and if someone's brazen irrationality is is you know sand in the gears of progress then you know hopefully the court will have a way to deal with that uh this case it sounds like as far as I can tell that the person had some reasonable objections to what the other jurors were willing to agree to and and that's his that's his prerogative and you know you don't have to agree with it you could say he's completely wrong but you have to respect it in the end that's he was there to judge and he did And if further discussion is futile, the court can address that, declare a mistrial, and the prosecution gets to have another at-bat.
Chris Baker 00:14:19: I think we should be concerned, though, how the coverage of this will impact future jurors who might be on this case. I mean, I don't know what's going to happen here. And we also have a point, you know, too, where Kevin Reddington's, I think that's his name, Kevin Reddington's wife was actually tweeting information about this juror. And I mean, what do you think about that? You know, I mean, literally the attorney's wife is doing this.
Nicholas Provenzo 00:15:04: I mean, if I were the opposing party, I'd mention that in court and discuss that. It seems unprofessional. Again, you know, clearly can sympathize with a spouse talking to their, a lawyer talking to their spouse about their day. But, uh, yeah, I hadn't heard of that one. That's not appropriate. Well, and then the court will have to weigh whether or not it impacts the fairness of the trial.
Chris Baker 00:15:35: And he's asking for pardons and which can't be done. Uh, Nicholas, I'm also wondering, you know, I know, you know, this being tried in the basket case that is known as Massachusetts. Uh, but there are things, you know, I mean, I mean, after, well, after the civil war, they passed those Klan laws, which are things like violations of civil rights. Could the feds move into this and say, and not charge Lindsay Clancy with murder, but charge her with violation of civil rights?
Nicholas Provenzo 00:16:09: Probably not. I don't think those laws are, I mean, I I'd have to really sit and think on that. It's a murder trial. And the question before the court is whether the defendant was sane. That that's basically the issue. There's no question as to whether or not she was the agent that killed the children. So it's really hinges on sanity and Massachusetts' definition of insanity. And that's not an easy question to answer. I mean, you know, we could say, oh, well, come on, they're dead. And what do you need to know? And everything like that. But I mean, let's be fair. I think the best formulation for the question of sanity in criminal action is the M'Naghten test that was developed in the UK. And I should have written it down. Let me look it up. M'Naghten is basically disease of the mind so overwhelms the individual that they didn't know the nature or quality of the act. Oh, there we go. So I got it. Proof of the disease of the mind of such a nature that it overwhelms the individual's ability to understand the nature of what they're doing. I think that's a high bar. That's not just like some, oh, you know, walk in with every garden variety problem and say, this is legal insanity. I think that's difficult to prove. And you're gonna have to show and then the question is is is this is where it gets all muckety-muck is you know does postpartum depression rise to that level and if I were a defense attorney, I'd be worried if that was my client's defense, because I think that's a tough one. Depressed people don't get out of bed; angry people murder. So you've got to explain this to me. and uh uh angry people kill uh and and how does this get you off I I'm gonna have to really understand The medical science here. So I would not be sitting around like, oh, this is some sort of slam dunk. My client's got to get out of jail. I'd be, I'd be sweating bullets because again, you're talking about a high bar here, a disease of the mind. So overwhelming that it diminishes, uh, crushes the individual's ability to, uh, understand what they're doing.
Chris Baker 00:18:50: Yeah, unfortunately, I think, you know, I think a defense attorney is obligated to do whatever it takes. I really believe that, you know.
Nicholas Provenzo 00:18:57: No, the actual standard is zealous representation. Zeal and intelligence.
Chris Baker 00:19:05: I don't think, however, I do think a prosecutor should be more focused on just what is the truth, but yeah, it's
Nicholas Provenzo 00:19:13: That's right. A prosecutor has a different burden. A prosecutor has to walk away from a prosecution that's doesn't meet the standard. Uh, you know, you, you have your, uh, initial, uh, more likely than not bar to have a trial, but then proof beyond a reasonable doubt in order to secure your conviction. So if you, if you are, if you're outside of more likely than not territory, then a prosecutor is obligated to withdraw, uh, the, the prosecution. So yeah, prosecution has a different, uh, the state has a different responsibility ethically. A defense attorney can throw anything up on the wall as long as it's reasonable or reasonable-ish, and that's considered to be zealous representation.
Chris Baker 00:19:57: Yeah, I mean, of all the things that should have disqualified Kamala Harris, that to me was the biggest one. This prosecutorial misconduct that she engaged in in the past.
Nicholas Provenzo 00:20:11: I think overly aggressive prosecutors are very scary. Like the one that sticks out in my mind was the Mike Nifong, Duke lacrosse case. And I can't say that I could give a treatise on all that went wrong there, but just the idea of a prosecutor who got such tunnel vision that they blinded themselves, as I understand it, you know, and I could be completely wrong, but blinded themselves to the reality. And the reality was that there just was no case here. And and and then the damage that does to people's lives because they have the stigma of being accused and that lands a lot harder than oh we found out later that uh this case uh didn't have uh that dog didn't hunt didn't have a leg to stand on uh that's harder to recover that doesn't hit as as hard as the initial uh Accusation. So, you know, yeah, it's, it's, it's asymmetrical for sure.
Chris Baker 00:21:01: Certainly. Yeah. Well, well, yeah. I mean, I, I don't know about you, but to me, you know, we have to admit that maybe our system will never be perfected, but I'd rather see 10 guilty guys go free than one guilty than one innocent man go to jail.
Nicholas Provenzo 00:21:18: I hear that a lot. I'm going to, I'm going to push back gently and say, I want a system that gets it right. Yeah. And because I've been on the side or people dear to me have been on the side where their perpetrator got off and that's a bitter pill to swallow. And so I would say I can't guarantee you omniscience because humans aren't capable of omniscience, but we are capable of reason. And so by a human standard, we can have a system that does it right, that does it just, that does it objectively. That's kind of what our little initiative is about. And the idea that objective law is a stem to stern process, top to bottom, of reality, reason, and respect for individual rights. So, you know, do we have a culture that can give us that? I hope. I'm certainly going to work for it. Do we have a long way to go? Hell yeah, man. And that's why we need people's support to help us get this going. Because what do you have to do? You have to show people how to perceive reality. You have to show what the principles of individual rights are in that reality. And you have to show how you create fair systems of government in order to protect rights, fairly adjudicate disputes, and get it right as often as you can. So, you know, yeah, there's the, the, the maxim that you gave, uh, you know, 10 guilty, uh, rather than one innocent. I get that the, the horror of, uh, uh, uh, punishing an innocent man is, is, is quite a horror in my mind. So is letting someone off who, who, who, who, who caused harm and not giving them what they deserve. I mean, what is, what is justice? To give a person what they deserve with human life as the standard of measuring it. And uh you know can we do more yes do we have a good system it's always a question people ask you know how good is our system now well you know for all its faults It's like Frederick Douglass when he's looking at the slavery Constitution and he sees a glorious liberty document. I see a lot of glorious liberty in there, but it has to be animated a certain way. So he said, you know, interpreted as it ought to be interpreted, the Constitution is a glorious liberty document. And he said this before the 13th Amendment. So, you know, this idea of you have to go in with the right mindset, I think is very important. And that's kind of what OLI is aiming at in trying to find ways to make those arguments and make them to judges when they're making difficult decisions.
Chris Baker 00:23:56: The Objective Law Initiative. Yeah. So I got to ask, I should have asked sooner, what areas of law do you practice?
Nicholas Provenzo 00:24:04: I call myself a helpful fellow. So what I like to do is build relationships and find ways that I can help people. So, so I'm a generalist. Uh, I do mostly civil, so I haven't done any criminal law, but the idea is, is let me look at your story. Let me look at your life and see where I might be able to help is, is what I like to do the best. So I've done everything from victim's rights advocacy to vaccine injury just because I got admitted to that court and helped somebody with a case, complex business litigation. But what really gets me excited, what really warms my heart is I love the idea that America is the principle of individual rights. Animated by the Constitution. So the Declaration of Independence, the ideas of the Declaration animated and protected by the Constitution. So what I really want to do is I want to find ways to make that work. And wherever it leads me, wherever it takes me, uh, whatever I have to say and argue in order to make that real. Because for me, that's the lifeblood of civilization. The idea that we respect one another's rights. We identify what rights are. We respect these rights. And when there's a breakdown, we have a good system for figuring it out and restoring justice, restoring the peace, so to speak. So that's, that's kind of how I'm wired.
Chris Baker 00:25:26: Uh, you know, this brings me some other questions. Uh, uh, you know, since you've worked in civil law, what do you think about loser pays?
Nicholas Provenzo 00:25:36: Okay. That's an interesting question because it's, it's really, it's an economics question. So I, I, I got my LLM and, uh, my, my, my legal masters. You get your law degree, uh, did the University of Baltimore. And then I went to George Mason to, uh, get my advanced, uh, uh, uh, uh, masters in law. And it's interesting they you know they'll analyze that and what incentives and disincentives it creates right now we have uh unless people contractually agree to it uh uh you pay your own way except for certain cases which you know it varies by jurisdiction but mostly you pay your own way if loser pays that creates incentives because I may have an iffy case that's still a winnable case, but am I going to look? Not only will I lose my case, but I'll have to pay my opponent's fees. That may steer me away from a case that, in fact, I would win, but my risk calculation was such that I decided not to bring the case. So realize that, you know, the idea of, yeah, wouldn't it be great if the loser paid? Like, screw him. He lost. Why should the winning party have to pay their fees? Okay, there's an argument for that. But if loser pays, you're going to lose marginal cases. And they may be a good question of justice in a marginal case. But again, someone's risk calculation, their financial calculation really may steer them away from it. But at the same time, you don't like the idea of burdening the innocent with the cost of their own defense. So I think what you really want to do is you want to make sure that you understand in a way all the costs and benefits of each system. And, you know, do I think the current system is the best? It's kind of the classic case of let's ask why it is there in the first place before we go ahead and change it. And where it works, where it breaks down, I think where it breaks down is what I illustrated, the fact that an innocent party may be stuck with a hefty legal bill and the act of defending themselves, which feels wrong, but Loser Pays may again dissuade a fully righteous party from seeking their day in court just because they can't afford the risk. So, you know, it's what prices are you willing to live with? What do you consider to be acceptable at the end of the day? Wouldn't it be nice if it wasn't so expensive to go to court? That's that's where you know I wonder uh and and and and how do we deal with that probably through arbitration where you know you'll enter an agreement you and I enter a contract and we'll agree to arbitration rather than going to court and the idea is to make the cost of resolving a dispute less expensive so you could you could achieve those goals by contract by agreement rather than a full rebuild of the system does that make sense
Chris Baker 00:28:33: Yeah, that's what I'm talking about. It just seems like we have a lot of, uh, ridiculous and frivolous torts, you know, the, uh, you know, it's like the, the kid break, you know, the kid jumps the fence and then drowns in your swimming pool. And then they're suing you because the kid drowned in the swimming pool. Well, why was the kid trespassing?
Nicholas Provenzo 00:28:51: You know, that that's I found when I got my legal education, cause I was an adult learner. So I did this, uh, you know, 10, 15 years ago. You looked up the actual cases and it's always a little bit more it's all it's not quite that you know there's the how it gets in in in in urban legend and then what actually was inside and the famous one was the McDonald's coffee case lady spills coffee on her uh and uh sues for this massive recovery and you said well that's just absurd I mean everybody knows coffee's hot well this coffee was was Just a degree or two below boiling. Kind of got tossed in there. She got burned, third degree burns, pretty heavy duty, nasty stuff. So it wasn't just the garden variety ice cold coffee on myself. It was prepared in a particularly hot manner. Uh handled in a particularly dangerous manner and then the jury would have to decide is McDonald's to blame or is this lady uh have to bear her own costs and in this case uh they decided that McDonald's was to blame because of the preconditions and we can argue that but before we just say you know oh this was a dumb case let's make sure we get all the facts at least that were raised at trial in our heads and decide whether or not we agree with the court. I have perfectly no problem disagreeing with a court when it arrives at a conclusion, but let's make sure at least we're looking at the entire case as it happened in a trial. The swimming pool cases, that's called an attractive nuisance. Where I make something that is like a flame to a moth, and I can expect that people will come into it because it's such an attractive danger. And so is there an obligation on me to fence it off and guard so that little innocent Johnny, whose mama isn't watching him, doesn't get hurt? And you could argue, well, there's contributory negligence there. Why wasn't little Johnny's mama looking after him? Uh uh making sure that he wasn't going where he shouldn't go or is it you know make sure that there's a good enough fence so that a reasonable uh a person could expect that it'll wall it off so a toddler can't enter the pool and drown those are those are all difficult questions When you really sit down and think of them and what's the duty here? What's the obligation here to outsiders who may come across my property uninvited? Do I have any? Is it just you stumbled and you're automatically wrong? Or is it a little bit more nuanced? Again, I would want to have all the facts before me in order to be able to accurately judge the hypothetical before I just dove in and gave it a blanket. There were no rights violated here. It's very clear to me. Uh where this case lands does that make sense
Chris Baker 00:31:45: Yeah. Yes uh so uh I got you know it's also what do you think about plea bargaining I mean I know Robert Bidinotto says plea bargaining should just be outlawed especially with right cases I mean I I think it's a huge problem because so many people are just giving up their day in court anyway and it seems like in some cases prosecutors will stack a bunch of charges when they really only have one or two solid cases, but they might make it 10 charges. You know, that kind of thing.
Nicholas Provenzo 00:32:14: I'm totally sympathetic to the idea that this is a problem. I haven't figured my way out of the box yet, but I see the problem because what you're doing is you're really playing a game of poker. You're not doing justice where the state meets its burden and convinces a jury of your peers that you committed the offense. They'll argue the the argument is well if we had a trial for everything we would just grind down the justice system because there'd have to be all these cases well my view is justice costs what justice costs so if that's a part of life that's a part of life uh and yeah it's going to be an economic burden it'd be interesting to know exactly how much figure in your mind if you could predict it at all or test it I don't know how you you know you you test it in one spot and uh and and we're we're going to bring every case to trial we're not going to plea anything out and see how it works uh you know to have that information would be useful I think uh yeah I I'm troubled for it for the obvious reasons it's it's a game of poker where you're doing an economic analysis of what are my likelihoods you're trying to guess your likelihoods of winning and the time or the money involved and whether it's by cost benefit analysis, it's worth it for you to go to trial. And, uh, you know, the state's trying to make it sweet by throwing you a little bit of a deal. Uh, I mean, civilly, most trials, most disputes end in negotiation. Yeah. So there's a part of me that wonders letting the parties negotiate, uh, an end. Might actually be effective. So I'm not completely willing to throw out a negotiated agreement on a criminal case. But it does eat at me. It does bother me. State should prove its case in court.
Chris Baker 00:33:59: Yeah, well, you know, you know, there are lawyers out there, for example, who will even take your speeding ticket and they can get it knocked down to a muffler violation or something like that. So you don't get the points. I mean,
Nicholas Provenzo 00:34:12: Yeah, but I mean, I was in a court when I had a, I had something that was a moving violation. The judge is like, I'm just going to turn it into this, pay your $15, get out of here. It was before I was an attorney. So, I mean, and I wasn't represented by anybody. I was just going in bright eyed and bushy tailed. Uh, I mean, they do that. Is it good? I don't know.
Chris Baker 00:34:35: Well, you know, I, I managed to get a, I managed to actually get one completely dismissed, but yeah, a traffic ticket, but yeah, that's a.
Nicholas Provenzo 00:34:44: I got a $500 ticket for riding my bike in a park. I was with the Mrs. And we were riding our bikes in Washington, DC around, it's called Hains Point. It's the golf course that's all in the news because of Trump. And they had closed it down for a marathon. And we thought it was just close to cars. So we take our bike and go past the car gate. And, uh, you know, next thing, oh, we're riding happy. And, and the park police comes and they issued us a 500 flipping dollar citation. And, uh, they dismissed hers just administratively. I don't even, she didn't even do anything. They dismissed it. Uh, mine, I had to go to court. Officer didn't show up. And I was ready to give. You can't ride your bike in the park. Where can you? You know, I was ready to go. I was going to put the system on trial.
Chris Baker 00:35:32: And, you know, it's just. Well, if you if you end up if you have and, you know, if all the traffic tickets go to court, geez, what what would that do to the system?
Nicholas Provenzo 00:35:41: Right, right, right. And then, and then there's, you know, so, so, so one of the interesting things I studied when I was doing law and econ at George Mason was how do you price offenses? And, uh, you know, the, again, the cost benefit analysis of, is it worth it for me to go and argue and maybe, you know, get a 30% chance that I win, but a 70% chance I get a conviction and how valuable is my time? And, you know, the, the, the, the, the rational thinking it goes into paying a stupid offense. And uh there was some really interesting work done uh I think it was uh Gary Becker I don't know going back to the 60s where it was like how do you price uh uh something like a parking offense How much should it be? What should the fine be? $10, $15? And again, it was finding out what the value is for the respective parties, what the harms were. And, you know, so in a way you could look at it as your stupid tax, where if I need to park there because I have a meeting and if I miss that meeting, I'm going to lose my million dollar deal. And the $15 fee is nothing to me. I pay that in a heartbeat because the value is greater. I've inconvenienced uh whoever you know if they're rationing parking is what is really parking restrictions but a rationing system um you know I screwed someone out of an easy spot but you know the utility was so great you know and so it was an interesting instruction in like okay what how do we price these things what should we do and uh okay for speeding you know yeah if I really need to get there to drive my poor pregnant wife to the hospital I'm willing to pay the fee the fine but I got to get her to the hospital so you know yeah I wanted to take the risk and yeah you know and of course me
Chris Baker 00:37:20: And, of course, I won't forget that time I got a parking ticket in Santa Monica, California on a Sunday. You know, my first reaction was there are parking tickets. I mean, yeah, but typical Cal, but that's California. I should have expected something like that.
Nicholas Provenzo 00:37:41: Well, DC, what I like at the, I can imagine. Yeah. I mean I'm a great legal professional and I'm standing there in front of these signs like I have no idea what this means and I'll take the photo let AI analyze it it can't figure it you know and like how is how are reasonable people supposed to react and that's part of what Objective Law Initiative is about because these things should be understandable you know if you have a cryptic law that no one can divine what what the offense is how is justice served it's a nightmare and yet you know I can Anybody who lives in the DC area can point to a cryptic law as badly enforced. So, you know, amen.
Chris Baker 00:38:19: Cryptic laws. Yes. You know, I also got asked too, what do you think about the Fully Informed Jury Association and, you know, jurors should judge the law and the facts.
Nicholas Provenzo 00:38:31: All right. Right. Well, that's another one where I struggle with it. I've been back and forth on that about a million times. Okay. The ability to nullify a law is a tacit and unspoken power of a jury. Okay. Some courts, they don't want anyone to mention that and they get all, you can't tell a jury that. It's a tacit power. It exists. When should you use it? I'm of the opinion that like, like if I got, if I got, you know, I don't have to serve on a jury anymore because I'm an attorney, so I can immediately pull in my red card and I'm done for the day. Um, yeah. If I got called to serve on a jury and it was a jury for a law, like, you know, ask me to enforce a Fugitive Slave Act. Okay. I'm not going to do it. The question is, is do I do, do I refuse to do it during voir dire where I say, I'm just simply not going to, uh, send a slave back to the South and escape slave back to the South and consider it immoral? Is slavery immoral? I don't think it's a legitimate power government. I'm not going to do it. Or do I go in stealth and do it in the jury? I actually nullify the conviction by my vote. Um, I'm of the opinion that you should only do that for something you're willing to risk a civil war. So I give it a lot of serious, like it's a serious thing you're doing here because if the parties go into a court expecting that this will be a fair hearing and then someone throws a monkey wrench in it because they disagree with the law, the legislature is the normal place where you deal with laws. Appellate courts are where you deal with laws, but a trial court is hearing the laws the judge instructs you and a yes or no verdict on guilt. And if you're not willing to do that, then you gotta be willing to say, and I will fight you and you will lose over it. So, you know, like, will I be willing to go to war over slavery? Yes. Uh, are there some things that I'd be willing to go over war with? Yes. Uh, garden variety laws that I don't agree with. I kind of feel like that should be left to the legislature and the work. That's something that OLI is very much animated by the work of explaining to a court that a law is wrong that a law violates individual rights and that the standards that currently have allowed that law to remain on the books are broken if that is in fact what perpetrates the law being on the books so what we're really saying is is we need to look at law a little bit different than we do now a little bit more philosophically A little bit more principled, a little bit more interest in what the individual rights are and how we articulate and identify those rights and weigh them in comparison to other rights. Because a lot of times it's, it's, it's a weighing battle where you have to figure out which, which, which right outflanks the other right here, if it's a dueling rights. So, and that's not easy. That's hard business and it'll never end. But, you know, give the courts a robust process to use, and I think they can do a better job with it. And that's what the initiative is about. In terms of jury nullification, I mean, it'll always be a tacit power. I'm troubled by, you know, like the Emmett Till jury. Emmett Till was an African-American boy in the 50s who was accused of whistling at a white woman, gets murdered. The local courts hold a trial. The murderers who all facts would establish were the perpetrators. Are let off because that jury wouldn't convict a white man for killing a black boy. That's horrific. That's also jury nullification. So you have to own the whole totality of the problem. And so that's what I'm saying. Save it for the big ones. And, you know, the Emmett Till, I mean, that eats away at me. Because what did it signal to his parents? It told his parents and anybody who loved that boy, there's no justice to be had here. We can, the state can meet its burden. It can prove its case. The offense is clear. The law was violated. The boy was murdered. There was no defense justifying it. And you get nothing because of prejudice, because somebody said we're a white jury and we don't convict, uh, uh, uh, fellow whites for murdering a black man. Yeah yeah Emmett Till yeah Emmett Till is certainly a horrifying case yeah there's and what are you left with then you then then you are told you the only option you have if you're a Till family is civil war or you know thank god that's where I give Martin Luther King tremendous credit was you know whatever my disagreements about his altruism he was able to and his movement was able to fight the case for equal protection under the law while avoiding civil war because the Till family would have been completely within their rights to say, there's no justice and nobody who's like us can ever expect anything different. We should fight them and they need to lose. So, you know, to successfully, to successfully engender the change that King's movement engendered absent civil war is tremendous. It needs to be studied. So, you know, whatever my disagreements, you know, King being a pacifist or anything like that, look at, you know, judge it by the result. And that was important change while avoiding civil war.
Chris Baker 00:43:46: Well, one important fact is Dr. King was very much in favor of the Second Amendment to the Constitution. But, uh, uh, you know, that, that, that is one reason why I, I, you know, can, at least what it seems like the facts, I was glad to see Karmelo Anthony got convicted and that was so disgusting that anybody wanted to defend this punk. Uh, you know, you know, when he stabbed the kid at the track meet and crap, what's his name?
Nicholas Provenzo 00:44:15: Yeah. Yeah. I, I, okay. The, the, the, the, uh, the, yeah. There are certain cases where I just go out of my way to avoid because they're just chum for the whatever. That's a sensational case where you're trying to make I wonder where a defense attorney is looking and like, I literally got nothing, so I'm going to throw this and see where it lands. And a jury needs to see it, see through it, the objective, be fair, you know, and, and, and, uh, and, and, and, and, and, and give the perpetrator what they deserve. And that calculus and again not easy because again this becomes a sensational case your whole community's in an uproar you do have the history of uh racial discrimination and this and that and reverse this and up that you know that you all got to sit there and you got to know what am I really looking at here because you're going to get a lot of noise you got to find the signal yeah what does it take to do that it takes a judicial temperament It takes a temperament that can hear it, but assign it its proper place. Okay. That's noise. I'm putting that off to the side. What do I have? And then to be able to, in a jury room, articulate your views. To your fellow jurors so they understand. So it's not just, you know, oh, you're an idiot if you don't agree with me. Well, show your reasons. Explain yourself. Okay, this community does have a history, but does that history rise to the level that it excuses what happened here? What really happened here? Let's look at it. What do you think happened here? hear people out, have that back and forth so that, that, that, you know, it's, it's a thoughtful and engaged process and goes through the kind of error checking that hopefully a room of 12 people can engender. But we're so down on our culture right now that you're like, oh, you could put any, you know, they just can't do it or it's impossible or they're, they're biased or something like that. Well, you know, some are, but can you, you know, if it was on, it was up to you, if you were in that room. Could you have explained the mistake that the pro-acquittal advocates would be making and explain to them so that they would understand it and see through whatever biases they were holding that blinded them to the reality of the case? That's a tough ask. That's a big demand. And yet I think it's necessary. Absolutely necessary if we're going to have justice. That's the level that you have to communicate with everybody that you interact with when it's a question of justice before you.
Chris Baker 00:46:51: Uh, the victim's name was Austin Metcalf.
Nicholas Provenzo 00:46:53: Right, right, right.
Chris Baker 00:46:54: I mean, it was horrific.
Nicholas Provenzo 00:46:55: I mean, it was on film. It was, I mean, it was, if I remember correctly, it was a nightmare story of a young man.
Chris Baker 00:47:03: Well, there seem to be lots of witnesses, you know, there, there are some things that we, we just, we have no witnesses. We have no videos. I mean, I. Uh, one thing that I'm finding very disconcerting nowadays, and we know have, you know, some people call them Soros prosecutors and we also have activist law professors. And I, and I definitely think we have activist judges. Can you comment on this?
Nicholas Provenzo 00:47:30: All right. One more. A lot of pushback. I hope you don't mind. Okay. The Soros guys. Yeah. The Soros people wearing prosecutorial hats are troublesome. And so what do you have to do you have to identify the specific cases that they got it wrong and uh and and run against them but you know like in my community we don't have we don't have a Soros guy he's a democrat but he's a reasonable democrat as far as Democrats go and uh no one runs against him so that kind of signals to me that no one's willing to take the risk of challenging it so it must not be whatever he's doing wrong it must not be that bad Um, no one's willing to even finance it, you know, so, so there you go. Nobody, no, no mass movement to challenge this, uh, prosecutor. That's fine. Okay. Activist judges. Well, that depends. What do you mean by activist? If you mean that a judge is acting like a micro legislature, imposing his whim because he thinks he can or she can. Yeah, that's bad. We have one legislature and the judges, the courts, are designed to tell you what the law is, not necessarily what it ought to be based on their policy whims. I think antitrust law is a glorious example of an activist judiciary taking basically a nightmare that Congress gave the courts and trying to make it make sense. And they never can because it just antitrust is broken because the very act of competing does so many of the things that antitrust attempts to criminalize. I think that's unfair. So the fact that the court fell over itself to breathe life into these laws and come up with doctrines and revise these doctrines in order to somehow keep antitrust alive. That's a problem in my mind. But if you said an active-minded court A court that looks at the entire structure of government, again, as, as, as, as OLI, Objective Law Initiative would ask it to do and says, there's a tension between this law and the principle of individual rights that the whole state is predicated upon. And I can show you it philosophically. Therefore, you know, this law should be allowed to stand or this law should be held unconstitutional. I don't consider that an activist judge. I consider that to be an active-minded judge. And they're doing what the judiciary should do, which would be evaluate the morality of the law, a law within the entire framework of laws that a free and just society would enact in order to carry out its legitimate mission. So, you know, when they have these congressional hearings and they ask judges what they think about this case or that case, I would never, if I were a member of Congress, I would never ask that. I would ask them, what do they think the proper mission of government is? What is the legitimate mission of government? And not, you know, they want to weasel out of it, well, here or there. No, I want to know what you think. What do you think, if you had the power today to draft a Constitution, what would you say its purpose would be? And then hear the answer and then you'll find out a lot. And then, you know, you would ask them, all right, when something violates that principle, what do you think the courts should do with it? And what do you think if it's just the courts kind of having an opinion on it though? Like, ah, you know, I'm going to fix this a little bit. I'm going to save the Affordable Care Act because yeah, you know, it looks like a tax, but you know, Congress wrote it and why not, you know? Uh what do you think of that and find out if they're willing to check themselves or check their their brother justices brother and sister justices and judges uh when uh they uh uh leave the confines of the good I'm not a big fan of like the decision to uh uh remove federal protection for abortion I think that it was a tacit right that the Constitution properly protects under the Ninth Amendment, under other theories of rights, protection of identification. So, you know, for the court to strip that out, I think is a problem. And I think, you know, you could argue that, you know, Roe was poorly reasoned, but you know, it's, it's, it's holding a woman has a right to exercise dominion over her own body up to a certain point, uh, based on the trimester model is good law. Then, you know, you, you, you, you can make the reasonable inferences from there.
Chris Baker 00:52:20: Yes. Uh, you know, Amy Coney Barrett came from Notre Dame Law School. Sandra Day O'Connor came from Stanford Law School. But in between all that time and now, all of these Supreme Court justices are even are from Harvard or Yale. Do you think maybe we should require law school diversity on the Supreme Court? I mean, let's have nine different law schools. Would that be better? I mean, you know, think about, yeah.
Nicholas Provenzo 00:52:49: When I am president, hold your breath. Um, you know, I'd be inclined to draw, like right now, they draw typically from the two big schools and a certain career path. I don't think that you have to have that. I mean, I would draw from academia. There are people who are in academia, I think would make fine Supreme Court justices who understand the big issues and are principled and have judicial temperament, even if they don't have the appellate background that they seem to favor today. I'm really more concerned that, you know, what is the Supreme Court tasked with answering? They're tasked with answering constitutional questions. And I think that you could come from many different walks of life. Uh you'll I mean yes you'll have to understand the law you'll have to have a law background but there are many there should be many different paths to uh the Supreme Court bench not just uh through uh Harvard and Yale I mean you know how about throw a University of Chicago bone every now and again and uh you know I'll never get lucky I'm University of Baltimore oh that's in the 90s or something like that uh you know I'm sorry about myself being nominated but wouldn't it be nice if uh you know we had a A deeper bench, so to speak, for your word, diversity. Really what you want is a more thoughtful bench on constitutional questions. But when you look at it, you know, people are basically, they're being selected because they have a known history. That whoever nominates them can agree with enough uh that you know they'll they'll uh get through uh what and you can you can see in the the the uh nominees that didn't make it through I think bork was the uh the biggest one in the 80s reagan uh nominated judge bork uh who was you know the permanent antitrust scholar uh but they just felt that he was too uh to disquieting in his judicial temperament to confirm as far as the Democrats would be. I guess Ted Kennedy did the big lobbying against him at the hearings. I was a kid, so I shouldn't speak with authority, but you know what I mean. So a pure ideologue as they perceive Bork to be. And you know again he was the originalist so he was going to strip a lot of the rights that the left considered to be important like abortion rights uh out of the Constitution he saw that the Constitution was empty in those regards it did not speak he was very he was an intellectual in that regard and you can disagree with him but you know he was a force to be reckoned with so he was too much for them to uh agree with so what's a politician typically doing what's a president typically doing he's reading the room trying to figure out you know what's the best guy can get through the uh nomination process and coming from Harvard or Yale is a safe bet just like you know hiring uh someone from a large firm when you're a company uh you know to represent you is a safe bet rather than hiring a boutique firm you know they just oh they have a track record they're from a good institution oh wonderful they'll pass
Chris Baker 00:56:09: Yeah. Uh, I did want you to comment. What, what, what do you think about the state of law schools right now? I mean, I'm getting the impression that they're going woke, especially in certain areas.
Nicholas Provenzo 00:56:19: I mean, of course, I think, I think that it depends on where you're at. I also think that there's, look, there's a, there's a grist mill that likes to throw that out. I went to University of Baltimore, so that was a school that was dedicated to not necessarily putting people on the Supreme Court bench, but training people to serve Maryland well, which is kind of funny because I live in Virginia, but that's where I got accepted. And then I followed up with George Mason, which is this law and econ thing, so that economics is useful in understanding law and human action as it regards to the law. I ran a Federalist Society chapter at Baltimore, and we were one of the preeminent groups. So I brought people to speak. I brought Tara Smith to speak. I brought Tom Bowden to speak. I brought Second Amendment guys to speak. Alan Gura, who was the big lawyer who won the key, the landmark Second Amendment case. I brought all these interesting people, and then I paired them with faculty. So it would be like a question. So you'd find like the, the, the faculty member who was most likely to disagree and invite them to kind of grill your guy. And I thought it was great. Again, that was the whole process, which I discovered. Objectivism was, you know, stress test your ideas. And so I was able to do that with no problem if federal society didn't exist it would have been a lot more frustrating because half of my legal education was just sitting talking to these guys and again didn't even always have to agree with them uh there was one gentleman uh you know I I support him on the death penalty but he's a more traditional conservative uh and uh you know as as an Objectivist I part ways on some issues but I have profound respect for him and I had this great relationship ever since as a result I had a great experience but I made it my experience you know I I wasn't I was an adult I wasn't sitting on my hands I knew what I wanted to do uh what I would warn a prospective law student watching your show is just realize that if you're an Objectivist and you're a big ideas person and you think going to law school is a good place to work that out, realize you're going to have to study a lot of boring stuff too. And like painfully boring and so it's not always going to be big ideas it's going to be uh you know sales uh law and understanding the Uniform Commercial Code and all its nuances and gestures and you can try and make it you know I'm trying to understand how someone would be the architect of a system and what it would work and what it's aiming at and the efficiencies that it hopes to engender through its structure you can do that but that's not what you're going to get tested on so and that's not what the bar is going to test you on and so I found that aspect difficult and grueling uh the the drudgery so to speak but every field has its drudgery I mean show me a field that you could study in college that won't have its drudgery and won't you won't have your opponents but do it like okay is it so woke I couldn't function I couldn't breathe no You know, were there some interesting people there? Of course. But you know, show me any lawyers convention where you don't find some, some people probably on the spectrum, you know, some fresh and full of, you know. Yeah.
Chris Baker 00:59:41: We're getting close to the end here. So I do want to ask you. What is a movie or TV show that gets it right? What is a movie or TV show that gets it wrong? I mean lawyer shows, lawyer movies.
Nicholas Provenzo 00:59:55: Oh, I don't even watch them I don't even watch okay take it uh but I think uh I you know and I was on uh uh recently on another podcast talking about a Judgment at Nuremberg I was on Michael Liebowitz's show and uh mike and I were talking about that I think Judgment at Nuremberg is exactly right brilliant like you know Maximilian Schell's speech is brilliant because it it it basically Nuremberg put the whole German system on trial and it needed to be on trial because of the horrors that it wrought and it examined what the people thought were part of that system and knew better and should have known better and yet allowed Hitler and what responsibility and culpability do they bear? And I think it was so brilliantly done that that's one that I could watch a thousand times and still find nuance out of it.
Chris Baker 01:00:47: Yep. Okay. So, uh, you, you have the Objective Law Initiative. Where can we find you out there on the web or on Twitter?
Nicholas Provenzo 01:00:56: Oh, gosh, I think it's ObjectiveLaw.org. Let me check. It's so new. I got to check the URL. Isn't that embarrassing? Um, ObjectiveLaw.org. And again we we're a new organization yes there's a lot on our website to learn about uh how we're animated we need your help because it's it's it's it's support from financial support from people like you and your your listeners that will allow us to fight the good fight to file the briefs make the arguments to go to the law schools to train aspiring lawyers who want to learn about objective law and Ayn Rand and ideas, to give them a home, to mentor them, all those things that are important to defend the good. And I'm really excited. I'm working with a great guy, Arthur Zey, who is an absolute dynamo in helping get things done and has a great legal mind and An objective sense of justice. And, uh, you know, there's lots of people who are all eager to help. We need the funds to be able to carry it out. And so I would, I would ask your, uh, you know, your, your listeners form a relationship with us. Let's get to know one another. Let's become friends and, uh, help us move the ball forward.
Chris Baker 01:02:16: Okay, well, please like this video, subscribe to the channel, turn on notifications, follow me on Twitter, go buy my novel Escape from the Village, check out my Substack, and people are giving me money at BuyMeACoffee.com. Thank you, Nicholas Provenzo. I'm Chris Baker. We're out. Buy my novel, Escape from the Village, from major booksellers online. Go to EscapeVillage.com. Subscribe to the Substack. Go to FountainheadForum.Substack.com. Support the forum. Go to BuyMeACoffee.com slash fountainheadforum. Thank you.