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South Carolina licensing officials accused of suppressing lawyer’s 1st Amendment rights

South Carolina licensing officials accused of suppressing lawyer’s 1st Amendment rights

Controversial conservative lawyer Todd Kincannon claims he’s being silenced because officials disagree with his political speech

It is axiomatic that the freedom of speech provisions of the 1st Amendment of the US Constitution are specifically intended to protect unpopular and/or offensive speech. After all, speech that is neither unpopular nor offensive is, obviously, not in need of any particular protections.  It is equally indisputable that of all the various forms of speech possible, it is political and religious speech that lies at the heart of 1st Amendment protections.

Meet Todd Kincannon, that &$(#*&%! Lawyer from South Carolina

In the context of the Conservative polito-sphere one of the greatest founts of offensive conservative political and religious speech is South Carolina lawyer (and former head of the SC Republican Party) Todd Kincannon, particularly through the vehicle of his Twitter account, @Todd__Kincannon (note that there are two underscores).

Despite Todd’s in-your-face, abrasive political and religious speech—or, as seems more likely, precisely because of it—the @Todd__Kincannon Twitter account has acquired in excess of 50,000 followers.

To put this figure in some context, this very highly successful and well-respected legal blog on which I am writing this post has just over 14,000 followers of its @LegInsurrection Twitter account. My own @LawSelfDefense Twitter account has only about 4,000 followers.

Kincannon Reports SC Officials Are Threatening His Law License Over Speech

Todd is now reporting that the South Carolina governmental authorities responsible for governing the professional conduct and ethics of attorneys have decided that Todd’s conservative political and religious advocacy on Twitter, and elsewhere, is too offensive to be permitted, and needs to be gagged.

Specifically, Todd has written that the South Carolina Commission on Lawyer Conduct and the South Carolina Office of Disciplinary Counsel have informed him that his political and religious commentary is “unethical” to a degree sufficient to warrant legal sanction to the point of disbarment. (The South Carolina Judicial Department definitions of lawyer misconduct can be found here: Rule 8.4: Misconduct.)

More specifically, Todd writes that these governmental agencies have threatened him with disbarment should he proceed with his planned publication of a book advocating conservative political and religious beliefs.

This past June they also informed Todd that following a two-year investigation based on a small number of complaints—none alleging anything other than offensive political and religious speech—they were electing to continue rather than cease the investigation because of comments Todd had made on his @Todd__Kincannon Twitter account regarding a left-wing political activist. As a result, Todd felt compelled to cease his Twitter communications effective June 22, and he has been silent in that forum since then.

In short, these South Carolina government officials are purportedly seeking to strip Todd of his professional license to practice law based solely upon his Constitutionally protected exercise of his right to freedom of political and religious speech.

Kincannon Breaks Silence With Email to Purchasers of His Book

Todd revealed this current state of affairs in an email released to persons who had pre-ordered copies of his book, in explanation for why they would not be receiving their ordered books in as timely a manner as they had expected.

Ladies and Gentlemen:

If you are receiving this email, it means you ordered a copy of my book. Yet no one has received any copies yet, and I owe you an explanation why.

I am presently legally barred from fulfilling the order. The South Carolina lawyer disciplinary authorities—government officials—have determined that my political and religious commentary is “unethical.” I am legally barred from sending you a copy of my book at this time. (Well, I could send you a copy, but I could be disbarred for it.)

This is the culmination of a two year secret investigation of me by the South Carolina Commission on Lawyer Conduct and the South Carolina Office of Disciplinary Counsel, two entities that have taken the position that the First Amendment simply does not apply to lawyers. Unsurprisingly, no Democrat lawyers have been targeted so far as I know, and the people in charge of the South Carolina Office of Disciplinary Counsel have solid Democrat voting histories.

I encourage you to do discuss this matter in public and on Twitter and Facebook, and you are free to contact the people involved to complain. Here are some excellent talking points: (1) This is just like the IRS Tea Party targeting scandal, because I am being targeted for my political commentary but absolutely no Democrat lawyers are being targeted. (2) Anyone with half a brain understands that the genuinely offensive things I say are merely to provoke the Left and are my distinctive brand of political commentary. (3) If my political activism wasn’t effective, no one would be trying to shut me up. (4) Unlike the Mozilla controversy and other examples of private boycotts, the South Carolina lawyer disciplinary authorities are government agents who are punishing private citizens for political and religious advocacy that is not to their liking. (5) This is book burning, plain and simple. (6) If I lose my right to speak freely because I am a state licensed professional, anyone in a state licensed profession is subject to having their free speech rights taken away from them. (7) This case is one of the absolute best arguments against state licensing for professions. Once government gets its dictatorial foot in the door, everyone in the room becomes a slave to whatever group of petty tyrants happens to run that wing of government at any given point in time.

The reason for my silence about this matter until now is that I truly thought they would come to their senses about all of this. In fact, they indicated to me more than once that they would not punish me for political or religious commentary that was not to their liking, after initially demanding that I stop saying anything offensive on Twitter. (That was why I briefly stopped using profanity on Twitter in late 2012, in case you were wondering what that was all about.)

However, in early June, just as I was preparing to send out my book, I received an unexpected notice from the South Carolina Office of Disciplinary Counsel that the investigation was going to continue because of comments I made on Twitter regarding a left wing political activist named Col. Morris Davis, a frequent guest on MSNBC. (I have no indication that Col. Davis has anything to do with this—it appears a supporter of his filed a bar complaint on me, the seventh or eighth complaint filed on me in recent times.)

As a result of all this, I have prepared and filed a lawsuit in federal court. Please read the attached complaint that was filed earlier this evening. I will fight this matter all the way to the United States Supreme Court if I have to. Surrender is not in my DNA. However, I have no choice but to stop tweeting and hold off sending out copies of my book or engaging in any other advocacy until the federal court gives me clearance to do so without fear of professional repercussions.

Given that I am now legally banned from sending you my book, if you want a refund for what you have paid for my book (or anything else), please let me know and you will receive one immediately. A few people have offered to donate legal fees. That is not necessary. All I ask is for you to pray for me and my family and to raise absolute hell about this. I’m going to win this fight no matter what, but the louder you are, the quicker and easier it will be.

I suspect the federal court will clear me to send you a copy of my book within a month or two. I suggest you not cancel your order, because I have an idea that these books are going to be collectors items by the time this litigation is concluded with finality.

I will provide more details as they become available. I plan to coordinate a full-scale political and legal attack on all involved (within the bounds of law and ethics, of course) if this matter isn’t resolved to my satisfaction in the very near future. This is just my opening salvo.

Don’t just expect fireworks, folks. Create them. (Again, within the bounds of law and ethics.)

Todd Kincannon

Kincannon Files Federal Suit Against South Carolina Agencies, Officials

Todd has also filed suit against the South Carolina Commission on Lawyer Conduct, the South Carolina Office of Disciplinary Counsel, and specifically involved governmental officials, alleging unlawful suppression of his freedom of political and religious speech under the 1st Amendment of the US Constitution and Article I, Section 2 of the South Carolina Constitution.

Will SC Officials Claim Additional Grounds for Sanctioning Kincannon?

To date we have heard substantively only from the Kincannon side of this dispute. Certainly, it seems outrageous on its face that governmental authorities would seek to suppress the free expression of political and religious speech of any individual for any reason, and surely not merely because a handful of offended individuals managed to send them an outrageously outraged email of outrage concerning Todd’s admittedly offensive speech.

Do the SC authorities have some more substantive basis on which to threaten Todd’s ability to practice his profession? If so, I encourage them to make such information available to me here, where it will get as full and open a discussion as any materials we may receive from Todd.

A lifetime of experience dealing with politically-biased governmental officials targeting right wing opponents on the flimsiest of pretexts, however, discourages me from holding my breath until any such more substantive grounds for sanction are made available. Louis Lerner, anybody? April Sands?

Keep Eyes Here at Legal Insurrection for Ongoing Coverage

We’ll be following this matter closely, for many reasons. Most superficially, many of us blogging here at Legal Insurrection are licensed attorneys ourselves, and we regularly engage in political and religious speech that a great many people find offensive (if the regularly received death threats to myself and my family are any indication).  If Todd can be shut up for his political and religious speech, which of us will be next to have our license to practice law threatened by an offended government officials?

More broadly, if governmental authorities can strip a license to practice from lawyers simply because they wish to suppress their political and religious speech, what will be the next tier of licensed professionals to be so suppressed? Doctors? Electricians? Barbers? Anyone possessing a driver’s license?

And if a professional license can be stripped for political and religious speech, what other governmentally provided “good” can be taken? Access to government provided education for children—can your kids be kicked out of school for your offensive political or religious speech? Access to government controlled healthcare for your family—does your family secretly get placed on the “long” waiting list for medical care, VA-style, based on your offensive political and religious speech?

One last parting thought: I wonder what hard-drive back-up methods the South Carolina Commission on Lawyer Conduct and Office of Disciplinary Counsel have in place? Would I be the only person to be shocked—SHOCKED!—if they suddenly suffered a wave of “unexpected” and unrecoverable hard drive failures?

OK, this is the last, last parting thought, directed personally at Todd: You filed your suit in Federal court pro se. Don’t be foolish. You can afford quality legal counsel. Get thee some. Or not, you %$&%$&%! 🙂

P.S. Many thanks to Capitalist Preservation, Politichicks, and Instapundit for their prior and ongoing outstanding coverage of Todd’s travails.

–-Andrew, @LawSelfDefense

Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog (autographed copies available) and (paperback and Kindle). He holds many state-specific Law of Self Defense Seminars around the country, and produces free online self-defense law educational video- and podcasts at the Law of Self Defense University.


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When I was a boy, this used to be a free country. And, government bureaucrats did not try to intimidate or retaliate against people excercising their right to speak freely.

    jakee308 in reply to Musson. | July 16, 2014 at 12:46 pm

    Actually, no it was always like this. It’s just that now they feel secure enough to be blatant about their violations of peoples rights.

    Something that should give pause to everyone. They do not fear the public who are supposed to be their masters. Which means they believe they are the masters now.

    Things can/will only get worse.

      Musson in reply to jakee308. | July 17, 2014 at 10:24 am

      While it is true that individual bureaucrats abused their power in the past – today entire bureacracies coordinate their attacks against common citizens. The IRS, the BLM, the EPA and even the National Parks Service have happily coordinated attacks against common people.

South Carolina lawyers, why are you letting your bar get away with this crap?

I’m glad he’s suing, but it is outrageous that SC lawyers allowed things there to get so far out of control that a lawsuit like this became necessary.

I just hope SC law allows him to get punitive damages. Because this type of fascism needs to be punished, hard.

    Ragspierre in reply to Observer. | July 16, 2014 at 11:55 am

    I practiced briefly with a friend who broke out in the legal profession in S.C.

    His account was that the bar…and larger political arena…were quaintly corrupt and cliquish.

      Rags-I have written about the public policy use of the law now to force socialism nonconsensually and without notice on individuals. I wrote about it here.

      I was not familiar with Kincannon’s case, but the firm I cited as deeply involved in using education to drive nonconsensual policy change towards what is called Social Reconstruction has its ed practice headed by a former SC Governor. He was also Clinton’s Ed Secretary so he presided over School to Work and outcomes based education before it came back as the Common Core. I know the firm is active in this area in many states and likes to hire former public officials and public agency lawyers for its lobbying arm-Education Counsel.

      There really is something called the socialist use of the law. I am tired of encountering school board members who are not being told what legal documents they are being urged to adopt actually mean or do.

      This lucrative representation of entities pushing for a public-private partnership of the economy and society does get threatened by someone like Kilkannon with a sense of humor and a recognition of what the law and the US Constitution actually say. Instead of deferring to the admonition “the law says’ we are prone to saying “no, it does not” or “show me. That’s not my reading.”

      I really do think this goes back to the dichotomy now between the lucrative normative use of the law to redesign society for a different future and the traditional view of a set of rules. I know I attend lots of functions now and actually get cle credit from tracking what Equity is coming to mean and what legal obligations those shifts are creating. Invisibly for the most part.

        Ragspierre in reply to Robin. | July 16, 2014 at 1:51 pm

        Oh, I totally agree…!!!

        MOST…almost ALL…legal practice clinics taxpayers fund are unabashedly “social justice” boiler-rooms, and NOTHING BUT.

        I hope and expect the clinic Prof. Jacobson works in is an exception (and I really should have investigated this prior to this writing).

        The ABA and MOST bar associations are simply Collectivist organs.

          It’s worse than that Rags, which is why I noticed the connection. You have lawyers training alongside community organizers, but then using documents to reach common goals involving political change. You have economic development plans for states or cities where the same firm has partners representing the school board and on the board developing a vision for a planned economy that binds the school districts. Yet no one gets told that education and the law can be used for public policy purposes and that’s the way they are now being used. You follow through on what is cited and the creators acknowledge the theory or practice is to drive fundamental transformation in the sense of economic justice as a human right that means others have an obligation to provide.

          City council members, school board members, other politicians–none of them, in my experience, seem aware of the actual legal OR public policy implications of what they are urged to adopt. They all assume their lawyers will advise them of anything important to their decision. I keep reading the decisions that have enormous substantive implications as a matter of law that the people involved remain blissfully unaware of.

          A regulatory state binding individuals to a central planning vision may seem lucrative to set up and monitor. It’s actual effect on a productive economy though is akin to lighting dollar bills afire or eating your seed corn.

          It’s not just a philosophical difference in a view of the law and society. It’s that so few recognize that education and the law have shifted to normative tolls for fundamental transformation. Most people only learn of the shift when they are already bound by the Code of Conduct, charter, regulation, or unpublicized definition of those affected in a statute.

          Look at the actual language of the Workforce Innovation and Opportunity Act that sailed through Congress last week. Mussolini’s vision was less fascistic than what that has now mandated for all states and metro areas.

It would not surprise me in the least to learn there are Establishment Republicans supporting this.

TrooperJohnSmith | July 16, 2014 at 11:46 am

Meanwhile… the Leftists have blocked him from releasing his book.

They know they can’t win, but they are just delaying and obfuscating.

I particularly liked the last paragraph of SC 8.4 that stated members of the bar holding public office are naturally held to a higher standard! That’s a knee-slapper!!

MouseTheLuckyDog | July 16, 2014 at 12:35 pm

I haven’t read the whole article (yet), but there is something
While I don’t like what is happening, I also want to fix it properly. In that vein, how should the issue be framed?

Let me put it another way, during oral arguments, what should the answer to the question “So you are saying that the SC Bar cannot punish a lawyer for publishing a book advocating pedophilia?”

    At it’s most basic level, no, the bar shouldn’t be trying to CENSOR (yes, this is exactly what they are doing) anything at all.

    As Mr Branca has said, if the speech weren’t offensive, it wouldn’t need protection.

    If he does his job adequately as a lawyer, the Bar should kiss off.

    As a lay person, my first reaction would be that the Bar can sanction lawyers publically advocating criminal activity. I’m not really familiar with the details of the “officer of the court”, though.

Anyone know if you can still pre-order his book somewhere? Can’t seem to find a way or link. Seems like a good way to show support.

    I don’t think he’s taking any more orders. I’ve been waiting on my signed copy for awhile now and it looks like I’ll be waiting quite a bit longer. Thanks, SC government fascists!

Sure hope that Todd uses the Clearly Established Doctrine to defeat any claim of immunity by the individual govt officials.

Hard to imagine that there is anything more clearly established than First Amendment protections.

does he plan on representing himself from now on in this and, if so, is that a good idea?
its probably way to early to know if he is though.

Is this how a JD/politician should speak?

Senator Majority Leader Harry Reid talking &$(#*&%! about the Koch brothers:
“It’s too bad that they are trying to buy America. And it’s time that the American people spoke out against this terrible dishonesty of these two brothers, who are about as un-American as anyone that I can imagine.”

wait there’s more…

Following the SCOTUS decision Burwell v. Hobby Lobby Stores, Inc, Harry Reid stated that the decision was made by “five white men”, although one of the justices in the majority ruling was Clarence Thomas. As a result he was accused of race-baiting in an editorial in the Las Vegas Review-Journal. The article states that the “slip was no accident”.

I don’t care if he’s much wealthier than me. If he starts a legal defense fund, I’ll contribute to it.

Good for Todd, I hope he wins big. I’ve followed him for a long time and while he does say outrageous things sometimes, he’s always entertaining. (I mean, seriously, Star Trek is better than Star Wars? Crazy.)

    Hmmm, Mudd’s Women versus . . . what, C3P0?

    Star Wars: Princess Leia for a few moments in a bikini.


    Start Trek: James Tiberius Kirk leaving (mostly) humanoid bastards across half the galaxy–was there an episode where he DIDN’T get a little somethin’-somethin’ from some pretty thing with an odd skin color?

    I’ll stick with Star Trek. 🙂

    –Andrew, @LawSelfDefense

      Han Solo.

      Just…Han Solo.

      He trumps any Star Trek character. (But I wouldn’t expect a man to feel the same way.) 🙂

        TrooperJohnSmith in reply to angela. | July 16, 2014 at 5:31 pm

        ……and, Han Solo definitely shot first (before it was reedited to be PC).

        mzk in reply to angela. | July 18, 2014 at 4:33 am

        OK, I agree. Star Wars is woman’s Space Opera.

        (For Heaven’s sake, it was just a humorous movie, a silly little space western with a WWI movie complete with biplanes spliced on at the end. And the title was Star Wars, not a New Hope. How did it become a religion?)

A man who is his own lawyer has a fool for a client.

Insufficiently Sensitive | July 16, 2014 at 3:35 pm

More broadly, if governmental authorities can strip a license to practice from lawyers simply because they wish to suppress their political and religious speech, what will be the next tier of licensed professionals to be so suppressed?

I see one coming.

Members of the American Society of Civil Engineers (ASCE) all receive a regular subscription to a magazine called Civil Engineering. As a longtime reader of it, I’ve noticed a striking editorial trend, consisting of the insertion in many of its articles of truly pious references to global warming. That trend appears to closely follow the religious approach to climate science pioneered by the true believers at Scientific American and in most Universities.

AGW is not treated as an hypothesis, but rather as revealed doctrine, for which modern engineering designs must invest as much time and concern to account for and abate as they do for threats from earthquakes or analysis of structures. Never has Civil Engineering published a graph showing how computed climate model predictions of temperatures relate to measured temperatures over a time scale, though engineers were once thought to be paragons of hardheaded comparisons of theoretical calculations with direct observations of the real-world behavior of the calculated effects.

One can allow that those engineers in government-funded public works fields may be leery of losing contracts if they do not chant the AGW mantras of the public funding agencies. But how long will it be before some competitor or potential client of Engineer X will rare up and complain to the Board of Licensing, when Engineer X offers some opinion or design in conflict with the accepted wisdom of inevitable warming, sea-level rises and storm intensities?

I hope that Tod Kincannon is not just a leading indicator of political Boards enforcement behavior towards licensed professionals.

    You’re right about that. My husband resigned his membership in ASQ (American Society for Quality) when its magazine openly rejoiced over the appointment of Donald Berwick to head CMS. Fortunately my husband is now retired and doesn’t need an ASQ association anymore. This can be a real problem, though, for professionals seeking and needing all sorts of professional certifications.

      My technical background is in the biological sciences (I know, I know, there’s no “math”), having done my graduate work in molecular biology at Harvard.

      Watching such prestigious journals as Science and Nature follow the path of popular mags like Scientific American and Popular Science into Gaia-religiosity was so very sad. I remember when they all did actual science, and the scientific method mattered. Then they got moneyed up, and became whores like all the rest.

      Nothing did more than science (true science) to raise mankind for miserable living to a real quality of life. And the political destruction of science will have the opposite effect.

      Only after all the tenured professors have retired, of course.

      Someone else’s problem then, I guess.

      –Andrew, @LawSelfDefense

        And they will never be held to account for it. When it was disproven, it will be accepted history that they were all good scientists who adjusted their predictions based on the evidence.

America looks more like an Ayn Rand novel each day.

    TrooperJohnSmith in reply to Andy. | July 16, 2014 at 5:34 pm

    …. and Orwell only missed it by 30-years!

      Both Orwell and “Rand” were describing things that has already happened; Orwell was describing the USSR, and “Rand” the Revolt of Capital during the depression (whether or not she knew it!).

I cannot tell from this complaint whether this is a case of prior restraint, or not. The ONLY bases that I can think of for a bar to bar publication of a book are 1) disclosure of a client’s confidential information, and 2) slander. However, Bill Maher engages in slander, but he is not a lawyer, and nobody has sued him. I don’t see how being “no worse” than that individual is any defense.

I do concur with your advice to him.

Oops. According to the comments, He advocates pedophilia in the book. My mind is just not dirty enough. I have children. I consider pedophiliac unethical.

    No, there is no reason to believe he advocates pedophilia in the book.

    The pedophilia issue was an awkward hypothetical presented by one of the commenters here. That commenter has since clarified the hypothetical.

    In any case, it has nothing whatever to do with anything Todd Kincannon has written in his book (to my knowledge–I have not read the book).

    –Andrew, @LawSelfDefense

      Valerie in reply to Andrew Branca. | July 17, 2014 at 12:59 am

      Good to know. Still, I remain curious about the basis for the ethics complaint. It sounds so very weird, it gives me that old “McDonald’s coffee case” feeling. The first news stories about that case deleted all the facts upon which the decision was based. Imagination failed me then, and yet once I knew the rest of the story, the outcome was perfectly intelligible. I’d really like to know what on earth could justify an allegation that publishing a book is unethical.

        Milhouse in reply to Valerie. | July 17, 2014 at 8:51 pm

        The “facts” you have read about the McDonald’s coffee case are all lies. The award was just as outrageous as you originally thought. Coffee, especially coffee bought to be taken away and drunk several minutes later, is supposed to be hot enough to cause serious burns if spilled on ones lap. And people who buy coffee should know that, and shouldn’t be trying to open the cup while holding it between their legs, while the car is traveling at full speed.

          nexisfan in reply to Milhouse. | July 28, 2014 at 1:15 pm

          Love how you guys are all about free speech except when it comes to jury verdicts. Corporations can have unlimited “free speech,” but a group of people organized for a purpose other than hoarding wealth must be restricted (hello, tort deform)!

Quote: “Todd writes that these governmental agencies have threatened him with disbarment should he proceed with his planned publication of a book advocating conservative political and religious beliefs.”

So, in other words, if he just keeps quiet, and does not express his constitutionally protected speech (that the Old Guard in SC finds so ‘offensive’) then he can continue to practice his craft in the courtrooms of South Carolina. If this ain’t a prior restraint case, then I just wasted three damn good years of my life down in Buies Creek, NC.

Every single Democrat in South Carolina is either corrupt, evil, or both. All of them.

Any person who would remain in a party that admits Dick Harpootlian to be associated is worthless as a human being.

Naturally, the controlling committees of the SC Bar are dominated by Democrats.

The SC bar should be grateful that he hasn’t asked the fed court for a prelim injunction & TRO. This issue has LOOOONG been settled and so the bar would likely be unable to stop an injunction from also being the basis for a compensatory attorney fee damage award (tortious interference with business expectancy).

If y’all want to pray for something, pray that he refuses to settle. Depositions of the board members and discovery of their email servers should be of intense interest to the public at large.

An upcoming trial will be extremely positive for popcorn futures.

Actually, the question of an attorney supporting pedophilia has long been answered.

The ACLU openly, and with the support of the usual liberal crowd, represented NAMBLA, a group that supported elimination of laws restricting sex between men and little boys and openly encouraged such behavior.

With ACLU help, NAMBLA won lawsuits brought against it. Go ahead, look it up.

So if Kincannon answers that he supports pedophilia, he will not only be allowed to keep practicing, but he will get an award for having the correct political beliefs.

This needs to be bigger. Of course I don’t expect a single leftist to say a peep when the 1st amendment is stripped from someone they disagree with, but Fox News at the very least.

There are also some interesting parallels with the Mass. public defender Priya Alika Elias who uses the exact same medium – twitter – to say far worse things. For instance, she said that all white males should go extinct. Here’s an interesting collation of some of the rants she and her Social Justice Warrior lynching crew go on:

I mention it because I, you, we, everyone knows that no repercussion will ever come to her. The cases in which her extreme racial bias played a part will not be reviewed. She’s protected; a first class citizen, guardian of the left.

Hard to believe this is true.
But then, most Germans found it hard to believe the German government of the 1930’s under their version of ‘Barack Hussein Obama’ would start burning books.

This is really coming to a head. The cork will pop.

I could understand over tweets, but over a book? Everyone involved in this disbarment should be disbarred.

Eric Friday | July 21, 2014 at 8:09 pm

I had no idea this was going on. The is as scary as the prosecution of Kelly Mathis here in Florida based on his legal advice to a client.