Dan Epps

The court has never said those are available. The court has never conclusively said they're not available. Probably this court would say they're not available if it had to decide the issue. But here, it seems like he did not even make that argument.

Because it's post-conviction relief and you can't bring... Yeah, no underlying right to counsel, right? You have no right to counsel, not even just whether it's post-conviction, you have no right to counsel in cert proceedings generally. But he also didn't bring one below. Yeah, but also it's post-conviction, so that wouldn't work. Yeah, okay. So it's doubly, doubly. Yeah, I don't know.

Because it's post-conviction relief and you can't bring... Yeah, no underlying right to counsel, right? You have no right to counsel, not even just whether it's post-conviction, you have no right to counsel in cert proceedings generally. But he also didn't bring one below. Yeah, but also it's post-conviction, so that wouldn't work. Yeah, okay. So it's doubly, doubly. Yeah, I don't know.

It's not a good situation. And I think that the executive reprieve seems highly unlikely based on what I know about Texas.

It's not a good situation. And I think that the executive reprieve seems highly unlikely based on what I know about Texas.

Okay, I guess we're fast running out of any prospect of talking about Glossop. Maybe we'll record again soon to talk about that one. Any of the other ones? You mentioned briefly the other parent case, Boston Parent Coalition for Academic Excellence, CORP, the school committee.

Okay, I guess we're fast running out of any prospect of talking about Glossop. Maybe we'll record again soon to talk about that one. Any of the other ones? You mentioned briefly the other parent case, Boston Parent Coalition for Academic Excellence, CORP, the school committee.

Was that because you were thinking about saying something about that one or just because you were misreading the – It was just because I got my schools confused.

Was that because you were thinking about saying something about that one or just because you were misreading the – It was just because I got my schools confused.

Yeah, which is something the court has previously – declined to weigh in on coming out of Thomas Jefferson. I think we probably talked about this one on the show last season.

Yeah, which is something the court has previously – declined to weigh in on coming out of Thomas Jefferson. I think we probably talked about this one on the show last season.

So this came up. I don't know if you have encountered this issue. There are people that have been... convicted under old sodomy laws, but they were convicted of stuff that was unquestionably not constitutionally protected. They were convicted of the sodomy law, but of a sex act involving a child. But at trial, all that needed to be proven was just the mere fact of the sodomy violation.

So this came up. I don't know if you have encountered this issue. There are people that have been... convicted under old sodomy laws, but they were convicted of stuff that was unquestionably not constitutionally protected. They were convicted of the sodomy law, but of a sex act involving a child. But at trial, all that needed to be proven was just the mere fact of the sodomy violation.

And those people have raised claims based on Lawrence, right? And those claims, I think, have pretty uniformly been rejected, at least the ones that I've seen. And so in that situation, I mean, does your view suggest that the government has to prove something like this is the other person is not a consenting adult or something?

And those people have raised claims based on Lawrence, right? And those claims, I think, have pretty uniformly been rejected, at least the ones that I've seen. And so in that situation, I mean, does your view suggest that the government has to prove something like this is the other person is not a consenting adult or something?

But just put that to one side.

But just put that to one side.

And you think that should be the government's burden? I mean, what if it's a statute that we think is – not the sodomy statute, let's change it – but a statute that we do think is constitutional in 95% of its applications? Or 99%. But there's a small sliver of people for whom it's unconstitutional.

And you think that should be the government's burden? I mean, what if it's a statute that we think is – not the sodomy statute, let's change it – but a statute that we do think is constitutional in 95% of its applications? Or 99%. But there's a small sliver of people for whom it's unconstitutional.

You think that it's always the government's burden to show that this person is not in that small sliver of people.