1 00:00:03,200 --> 00:00:10,520 Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio. 2 00:00:17,560 --> 00:00:20,880 Speaker 1: Thousands of people in cities across the country rallied last 3 00:00:20,880 --> 00:00:24,400 Speaker 1: weekend to stop anti Asian hate, a response to the 4 00:00:24,400 --> 00:00:27,920 Speaker 1: wave of violence against Asian Americans and the deadly shootings 5 00:00:27,920 --> 00:00:31,600 Speaker 1: at three Atlanta area spots. At a rally in Los Angeles, 6 00:00:31,600 --> 00:00:34,880 Speaker 1: State Assembly Member David Chew said more must be done 7 00:00:34,960 --> 00:00:38,479 Speaker 1: to stop the violence. After a year of political rhetoric 8 00:00:38,600 --> 00:00:43,280 Speaker 1: demonizing Asian communities, enough is enough. We need leadership across 9 00:00:43,400 --> 00:00:47,120 Speaker 1: our country, in every state, at every level of society 10 00:00:47,440 --> 00:00:50,279 Speaker 1: to take action and bring justice to our victims. We've 11 00:00:50,280 --> 00:00:52,960 Speaker 1: got to stand up to these hate crons. Prosecutors in 12 00:00:52,960 --> 00:00:55,960 Speaker 1: the Georgia case have not yet decided whether to pursue 13 00:00:55,960 --> 00:00:59,280 Speaker 1: a hate crime sentencing enhancement to the murder charges the 14 00:00:59,280 --> 00:01:02,920 Speaker 1: defense and is already facing. In fact, incidents of assault 15 00:01:02,960 --> 00:01:06,319 Speaker 1: and harassment that look like hate crimes are often not 16 00:01:06,480 --> 00:01:10,399 Speaker 1: charged as hate crimes because of the legal requirements. Joining 17 00:01:10,440 --> 00:01:12,680 Speaker 1: me is Jack mcdevit, a professor at the School of 18 00:01:12,720 --> 00:01:16,880 Speaker 1: Criminology and Criminal Justice at Northeastern University and director of 19 00:01:16,920 --> 00:01:20,760 Speaker 1: the Institute for Race and Justice. What is the definition 20 00:01:20,840 --> 00:01:23,600 Speaker 1: the legal definition of a hate crime. I hate crime 21 00:01:23,800 --> 00:01:27,240 Speaker 1: is a criminal incident that's motivated either entirely in part 22 00:01:27,760 --> 00:01:30,959 Speaker 1: by a person's difference. And we're talking about hate crimes, 23 00:01:31,319 --> 00:01:33,560 Speaker 1: we're talking about criminal incidence. We're not talking about things 24 00:01:33,600 --> 00:01:35,960 Speaker 1: that would be non criminal. So, for example, if someone 25 00:01:36,080 --> 00:01:39,680 Speaker 1: uses a racial slur, that's protected speech in the United States, 26 00:01:39,680 --> 00:01:42,000 Speaker 1: so that wouldn't be a hate crime. Even if someone 27 00:01:42,040 --> 00:01:45,120 Speaker 1: gave a speech and said, you know, I believe that 28 00:01:45,160 --> 00:01:47,520 Speaker 1: all of this group should not be in the United States, 29 00:01:47,640 --> 00:01:50,440 Speaker 1: that's not a hate crime. So we're talking about crimes 30 00:01:50,480 --> 00:01:54,720 Speaker 1: like assaults, threats, harassment, things like that that are already 31 00:01:54,720 --> 00:01:57,680 Speaker 1: criminal incident. And then the motivation for it is the 32 00:01:57,720 --> 00:02:01,040 Speaker 1: person's difference. But the important out of that is in 33 00:02:01,160 --> 00:02:05,080 Speaker 1: most states it has to be only partial motivation. So 34 00:02:05,120 --> 00:02:07,520 Speaker 1: in other words, if you think about a crime where 35 00:02:07,760 --> 00:02:11,079 Speaker 1: someone might decide to go rob people and they choose 36 00:02:11,080 --> 00:02:13,799 Speaker 1: to rob immigrants, so people they perceived to be immigrants 37 00:02:13,880 --> 00:02:16,240 Speaker 1: because they think they won't go to the police, and 38 00:02:16,320 --> 00:02:19,639 Speaker 1: that's still a hate crime and a robbery. It seems 39 00:02:19,639 --> 00:02:21,520 Speaker 1: as if it, I don't know, if it's you know, 40 00:02:21,600 --> 00:02:25,720 Speaker 1: the fault of police, the fault of prosecutors that hate 41 00:02:25,720 --> 00:02:30,359 Speaker 1: crimes aren't being charged in all the incidents when they 42 00:02:30,480 --> 00:02:35,200 Speaker 1: could be. That's absolutely true. Both groups have some fault 43 00:02:35,280 --> 00:02:39,360 Speaker 1: in this. So for example, if we're talking about a 44 00:02:39,440 --> 00:02:42,640 Speaker 1: victim comes to the police and says that they were 45 00:02:42,960 --> 00:02:46,399 Speaker 1: a victim of a hate crime, sometimes the police we'll 46 00:02:46,400 --> 00:02:49,399 Speaker 1: tell him, no, it wasn't just go on about your business. 47 00:02:49,800 --> 00:02:53,080 Speaker 1: It was just kids playing or something. And in that way, 48 00:02:53,919 --> 00:02:56,240 Speaker 1: the police would be the ones that were causing it 49 00:02:56,280 --> 00:02:58,440 Speaker 1: not to be recorded as a hate crime. On the 50 00:02:58,440 --> 00:03:02,400 Speaker 1: other side, process cut is frequently say, let's think about 51 00:03:02,400 --> 00:03:04,360 Speaker 1: the cases in Oakland. When you see on the video 52 00:03:04,440 --> 00:03:07,760 Speaker 1: take people being thrown to the ground, that's an assault, 53 00:03:07,840 --> 00:03:12,280 Speaker 1: assault and battery. And what the prosecutor might say is 54 00:03:12,919 --> 00:03:15,680 Speaker 1: with this video, I can get a jury to convict 55 00:03:15,720 --> 00:03:18,760 Speaker 1: pretty easily on an assault and battery charge. But if 56 00:03:18,800 --> 00:03:21,720 Speaker 1: I then add on a hate crime charge that says 57 00:03:21,800 --> 00:03:24,640 Speaker 1: that they assaulted them because they were Asian, I have 58 00:03:24,720 --> 00:03:27,440 Speaker 1: to have different evidence and more evidence to prove that part. 59 00:03:27,880 --> 00:03:29,799 Speaker 1: And it's easy for me to get the conviction on 60 00:03:29,840 --> 00:03:32,399 Speaker 1: the assault. So why would I make my life more 61 00:03:32,400 --> 00:03:34,679 Speaker 1: complicated by trying to get the conviction on the hate 62 00:03:34,680 --> 00:03:37,800 Speaker 1: crime too? And the reason to get the conviction on 63 00:03:37,840 --> 00:03:42,040 Speaker 1: the hate crime is so that the perpetrator, if convicted, 64 00:03:42,080 --> 00:03:45,440 Speaker 1: gets more prison time. I'd say that's one, but not 65 00:03:45,560 --> 00:03:48,400 Speaker 1: the most important reason. The most important reason is to 66 00:03:48,440 --> 00:03:51,560 Speaker 1: say to the members of that community that we understand 67 00:03:51,680 --> 00:03:55,400 Speaker 1: these crimes are motivated by bias, and that we are 68 00:03:55,440 --> 00:03:57,920 Speaker 1: gonna take them seriously and we're going to try to 69 00:03:57,960 --> 00:04:00,720 Speaker 1: protect you. And so the more important reason to use 70 00:04:00,760 --> 00:04:03,040 Speaker 1: the hate crime charge is to send a message back 71 00:04:03,120 --> 00:04:05,880 Speaker 1: to the members of the community that's being attacked that 72 00:04:05,960 --> 00:04:08,720 Speaker 1: we don't share the bias of the offender, and that 73 00:04:08,880 --> 00:04:11,760 Speaker 1: we reject the notion that you shouldn't be in this community. 74 00:04:12,080 --> 00:04:15,320 Speaker 1: Hate crimes are symbolic. The offenders want to send a 75 00:04:15,320 --> 00:04:18,520 Speaker 1: message that we don't want you in our community, our workplace, 76 00:04:18,560 --> 00:04:21,240 Speaker 1: our college, campus, are high school, and we have the 77 00:04:21,360 --> 00:04:24,240 Speaker 1: society have to send a message back that we reject 78 00:04:24,279 --> 00:04:27,520 Speaker 1: those notions, that we want a more diverse society and 79 00:04:27,520 --> 00:04:30,599 Speaker 1: we want everyone to be a functioning part of that society. 80 00:04:30,839 --> 00:04:35,640 Speaker 1: What kind of evidence can a prosecutor introduce to prove 81 00:04:35,760 --> 00:04:38,200 Speaker 1: something is a hate crime. I take it if someone 82 00:04:38,320 --> 00:04:41,279 Speaker 1: yells a slur and while they're committing the crime, but 83 00:04:41,400 --> 00:04:44,479 Speaker 1: what other kinds of things, Well, you're exactly right. The 84 00:04:44,480 --> 00:04:47,800 Speaker 1: most common evidence is nin calling and slur during the 85 00:04:47,800 --> 00:04:52,200 Speaker 1: course of an event. Often offenders will say you know 86 00:04:52,360 --> 00:04:54,600 Speaker 1: you so and so go back to your own country, 87 00:04:54,680 --> 00:04:58,120 Speaker 1: or you don't belong here or whatever. But more commonly 88 00:04:58,200 --> 00:05:01,440 Speaker 1: these days are increasingly common these days, one of the 89 00:05:01,520 --> 00:05:06,360 Speaker 1: things that happens is that individuals will go into chat rooms, 90 00:05:06,440 --> 00:05:08,679 Speaker 1: and so when the police make an arrest, they generally 91 00:05:08,760 --> 00:05:11,720 Speaker 1: seize the computer to see what kinds of searches people 92 00:05:11,760 --> 00:05:13,760 Speaker 1: have been doing. And we see more and more these 93 00:05:13,880 --> 00:05:17,200 Speaker 1: days that offenders go into chat rooms of like minded 94 00:05:17,240 --> 00:05:21,080 Speaker 1: people who feel that, you know, that share their biases, 95 00:05:21,720 --> 00:05:24,719 Speaker 1: and they get egg gone to act them out in 96 00:05:24,800 --> 00:05:27,360 Speaker 1: these chat rooms. So if they see somebody who's been 97 00:05:27,360 --> 00:05:29,159 Speaker 1: in the chat room been saying things like we should 98 00:05:29,200 --> 00:05:31,359 Speaker 1: get rid of all of this group of our community 99 00:05:31,440 --> 00:05:33,800 Speaker 1: or whatever, that is also part of the evidence that 100 00:05:33,839 --> 00:05:36,320 Speaker 1: can be used at trial. Now, in order to charge 101 00:05:36,320 --> 00:05:39,360 Speaker 1: a hate crime, does the state itself have to have 102 00:05:39,640 --> 00:05:43,280 Speaker 1: hate crime legislation in place, or we now have federal 103 00:05:43,360 --> 00:05:46,000 Speaker 1: legislation with the James Bird Matthew Shepherd Act, we have 104 00:05:46,040 --> 00:05:48,679 Speaker 1: federal legislation that could be charged federally. But the vast 105 00:05:48,680 --> 00:05:52,120 Speaker 1: majority of them will be charged at the state level, right, 106 00:05:52,680 --> 00:05:55,000 Speaker 1: and each state has a differention of hate crime laws, 107 00:05:55,080 --> 00:05:59,919 Speaker 1: which makes it complicated. So, for example, lgbt Q for 108 00:06:00,000 --> 00:06:03,000 Speaker 1: oaks are protected in most states, but not all as 109 00:06:03,000 --> 00:06:06,919 Speaker 1: a protected group. Women interestingly enough are not protected in 110 00:06:07,000 --> 00:06:09,839 Speaker 1: every state, but only in some, so we do have 111 00:06:09,920 --> 00:06:14,719 Speaker 1: a bit of a patchwork across the country of laws. 112 00:06:14,839 --> 00:06:17,800 Speaker 1: Some of them are standalone laws that say, you know, 113 00:06:17,960 --> 00:06:20,560 Speaker 1: if you commit this or bias, it's a crime. Others, 114 00:06:20,640 --> 00:06:24,200 Speaker 1: as you suggested before, what they call sentence enhancements, which 115 00:06:24,360 --> 00:06:27,200 Speaker 1: means that if you commit an assault and you get 116 00:06:27,320 --> 00:06:30,480 Speaker 1: a penalty of five to ten years in prison, if 117 00:06:30,480 --> 00:06:32,680 Speaker 1: it's bias motivated, we can add a year or two 118 00:06:32,720 --> 00:06:34,880 Speaker 1: years onto that penalty. What does it take to get 119 00:06:34,920 --> 00:06:38,880 Speaker 1: federal prosecutors to charge a hate crime? They're rare. But 120 00:06:39,120 --> 00:06:41,320 Speaker 1: what we're looking at from January six is a bunch 121 00:06:41,320 --> 00:06:45,320 Speaker 1: of federal prosecutions for the rioters who went at the capital. 122 00:06:45,920 --> 00:06:49,680 Speaker 1: And so generally speaking, it has to be a federal nexus, 123 00:06:49,720 --> 00:06:51,200 Speaker 1: and what I mean by that it has to be 124 00:06:51,240 --> 00:06:54,479 Speaker 1: on federal land or dealing with someone who's involved with 125 00:06:54,600 --> 00:06:58,839 Speaker 1: providing federal services. And we can then go ahead and 126 00:06:59,680 --> 00:07:03,520 Speaker 1: Chary gen on the federal system. Those more common federal 127 00:07:03,560 --> 00:07:07,440 Speaker 1: approaches though, that what will happen is the FBI will 128 00:07:07,440 --> 00:07:12,680 Speaker 1: offer services support services to a local law enforcement agency. 129 00:07:12,840 --> 00:07:17,120 Speaker 1: And that's really helpful and important because these are rare events. 130 00:07:17,640 --> 00:07:19,680 Speaker 1: We you know, we see them a lot in the media, 131 00:07:19,760 --> 00:07:23,360 Speaker 1: but an individual jurisdiction where you might have a police 132 00:07:23,360 --> 00:07:26,480 Speaker 1: department who's dealing with regular, normal crime, they may not 133 00:07:26,680 --> 00:07:29,160 Speaker 1: see more than a handful of them in a year, 134 00:07:30,040 --> 00:07:32,840 Speaker 1: and so to have the expertise of the FBI be 135 00:07:32,880 --> 00:07:35,360 Speaker 1: able to come in and help you, and also the 136 00:07:35,440 --> 00:07:38,880 Speaker 1: resources of the FBI to help with an investigation is 137 00:07:39,280 --> 00:07:43,040 Speaker 1: very beneficial. Even though forty seven states have hate crimes, 138 00:07:43,280 --> 00:07:46,760 Speaker 1: eight six point one per cent of law enforcement agencies 139 00:07:46,800 --> 00:07:49,440 Speaker 1: reported to the FBI that not a single hate crime 140 00:07:49,480 --> 00:07:53,920 Speaker 1: had occurred in their jurisdiction in according to FBI data. 141 00:07:54,240 --> 00:07:55,920 Speaker 1: Is that because they don't want to show that those 142 00:07:55,960 --> 00:07:59,560 Speaker 1: crimes are there, because they just don't recognize them. I 143 00:07:59,600 --> 00:08:02,760 Speaker 1: think it's both of those things, and it's also honest 144 00:08:02,800 --> 00:08:05,720 Speaker 1: reporting in some cases. So I think you're you're very 145 00:08:05,720 --> 00:08:08,680 Speaker 1: insightful what you say. Some police departments go back. I 146 00:08:08,720 --> 00:08:11,480 Speaker 1: started training police on this with the FBI in the 147 00:08:12,600 --> 00:08:14,720 Speaker 1: so and then those days, they were all afraid that 148 00:08:14,760 --> 00:08:17,080 Speaker 1: their community was going to be called racist, and they 149 00:08:17,120 --> 00:08:19,640 Speaker 1: didn't want to report hate crimes because they're afraid of 150 00:08:19,680 --> 00:08:22,720 Speaker 1: what it will do to businesses and property and their community. 151 00:08:23,160 --> 00:08:25,800 Speaker 1: I think we're mostly past that now, but obviously some 152 00:08:26,040 --> 00:08:29,160 Speaker 1: departments still are afraid of that. So there's some of that. 153 00:08:29,240 --> 00:08:31,720 Speaker 1: The other thing is that frequently, as I was saying, 154 00:08:31,760 --> 00:08:34,960 Speaker 1: police don't want to get involved in a case where 155 00:08:35,000 --> 00:08:38,320 Speaker 1: some of those rocks to someone's window, and they would 156 00:08:38,400 --> 00:08:42,079 Speaker 1: rather report as vandalism, and so they just make mistakes. 157 00:08:42,640 --> 00:08:45,080 Speaker 1: And I'll give you an example of one in a moment. 158 00:08:45,280 --> 00:08:48,000 Speaker 1: And then we also have places where there are obviously 159 00:08:48,040 --> 00:08:51,400 Speaker 1: hate crimes. We've had big cities of over a hundred 160 00:08:51,400 --> 00:08:54,960 Speaker 1: thousand population that have reported zero hate crimes over the years. 161 00:08:55,040 --> 00:08:58,160 Speaker 1: And that's just crazy, and that means that there's not 162 00:08:58,480 --> 00:09:01,280 Speaker 1: a commitment to prosecuting hey crimes. What we've done in 163 00:09:01,600 --> 00:09:03,920 Speaker 1: our research and others have looked at it is and 164 00:09:03,960 --> 00:09:07,319 Speaker 1: we talked to police departments across the country about hate crimes, 165 00:09:07,360 --> 00:09:09,800 Speaker 1: and and I'll give you one anecdote. We went to 166 00:09:09,840 --> 00:09:13,040 Speaker 1: a police department in California one time, and we were saying, 167 00:09:13,480 --> 00:09:16,000 Speaker 1: you have reported zero hate crimes. Have you ever had 168 00:09:16,000 --> 00:09:17,839 Speaker 1: one that you thought was a hate crime? And they said, yes, 169 00:09:17,960 --> 00:09:20,120 Speaker 1: you know, I want to tell you about it. We 170 00:09:20,200 --> 00:09:23,080 Speaker 1: thought we had a hate crime. We investigated and it 171 00:09:23,120 --> 00:09:26,240 Speaker 1: turned out it wasn't. And so I said, well, what 172 00:09:26,320 --> 00:09:29,120 Speaker 1: did you learn. Well, a black family moved into an 173 00:09:29,160 --> 00:09:33,600 Speaker 1: all white neighborhood and somebody burned a couple of crosses 174 00:09:33,640 --> 00:09:37,720 Speaker 1: on their lawn. And I was lit incredulous and said, um, 175 00:09:37,760 --> 00:09:40,559 Speaker 1: how could that not be a hate crime? And they said, well, 176 00:09:41,160 --> 00:09:43,680 Speaker 1: we went and we got the crosses and we looked 177 00:09:43,720 --> 00:09:47,400 Speaker 1: at them, and it turned out they were really small crosses. 178 00:09:47,679 --> 00:09:50,280 Speaker 1: They were less than a foot tall. There were four 179 00:09:50,320 --> 00:09:52,960 Speaker 1: of them, but they were all really small. And in 180 00:09:53,040 --> 00:09:55,360 Speaker 1: the police department's mind, you know, it had to be 181 00:09:55,400 --> 00:09:57,800 Speaker 1: a six ft cross wrapped in rags like they've seen 182 00:09:57,840 --> 00:10:01,400 Speaker 1: intelligion and they said, oh, this was just kids. This 183 00:10:01,440 --> 00:10:04,800 Speaker 1: isn't a real hate crime. So sometimes agencies just need 184 00:10:04,840 --> 00:10:09,360 Speaker 1: to understand more about how these things manifest themselves. So 185 00:10:09,480 --> 00:10:14,600 Speaker 1: that brings up Atlanta, where out of eight victims, six 186 00:10:14,640 --> 00:10:18,560 Speaker 1: were Asian, two were white, from two different businesses, and 187 00:10:18,760 --> 00:10:24,520 Speaker 1: the suspect denies being motivated by racial animus. How should 188 00:10:24,520 --> 00:10:28,120 Speaker 1: the police and the prosecutors be proceeding here to get 189 00:10:28,160 --> 00:10:31,200 Speaker 1: to the bottom of it. It's a great question and 190 00:10:31,320 --> 00:10:35,040 Speaker 1: it is a difficult case, but they should be looking at, 191 00:10:35,440 --> 00:10:40,160 Speaker 1: you know, what made this individual target these particular establishments. 192 00:10:40,480 --> 00:10:43,679 Speaker 1: They individual and the media reports is saying that they 193 00:10:43,720 --> 00:10:46,679 Speaker 1: have a sex addiction and they were trying to remove temptation. 194 00:10:47,559 --> 00:10:50,320 Speaker 1: But that's what a lot of hate creme offenders say. 195 00:10:50,360 --> 00:10:53,080 Speaker 1: If these people weren't here, I would be better off. 196 00:10:53,679 --> 00:10:55,960 Speaker 1: What we find is most hate creme offenders tend to 197 00:10:55,960 --> 00:10:59,360 Speaker 1: be people who are not successful. There are people who 198 00:10:59,400 --> 00:11:02,480 Speaker 1: are to work, or their marriage has dissolved, or their 199 00:11:02,520 --> 00:11:05,959 Speaker 1: families having fights with them, and they're blaming somebody else 200 00:11:06,080 --> 00:11:09,280 Speaker 1: for the situation they find themselves in. And it seems 201 00:11:09,320 --> 00:11:12,840 Speaker 1: like this individual fits that model to a t blaming 202 00:11:12,880 --> 00:11:17,120 Speaker 1: the women working in the massage powers for his sex addiction. 203 00:11:17,720 --> 00:11:20,240 Speaker 1: And so I would definitely look at it as a 204 00:11:20,280 --> 00:11:23,920 Speaker 1: potential hate crime. Obviously the murders as well. But I 205 00:11:23,960 --> 00:11:26,640 Speaker 1: mean to send the message to the Asian community. As 206 00:11:26,720 --> 00:11:29,760 Speaker 1: you know, looking across the country right now, members of 207 00:11:29,800 --> 00:11:33,520 Speaker 1: the Asian community are incredibly frightened and they go out 208 00:11:33,559 --> 00:11:36,800 Speaker 1: in groups as opposed to singly. They have patrols to 209 00:11:36,880 --> 00:11:39,640 Speaker 1: support their elderly members of the community, and we need 210 00:11:39,679 --> 00:11:42,280 Speaker 1: to send messages back that we're not going to tolerate 211 00:11:42,360 --> 00:11:46,880 Speaker 1: people attacking members of the Asian or the Asian American community. 212 00:11:47,080 --> 00:11:49,679 Speaker 1: And one way to do that is to charge and 213 00:11:49,720 --> 00:11:53,040 Speaker 1: get convictions in hate crime offenses. So what would they 214 00:11:53,080 --> 00:11:55,840 Speaker 1: have to show in Atlanta? It's not enough that there 215 00:11:55,880 --> 00:12:00,000 Speaker 1: were six Asians out of eight victims of the businesses 216 00:12:00,080 --> 00:12:03,480 Speaker 1: were owned by Asians. If he doesn't actually say it, 217 00:12:03,640 --> 00:12:07,520 Speaker 1: they look through his background to find to his background, 218 00:12:07,920 --> 00:12:10,959 Speaker 1: they look through the computer sits he's been saying it, 219 00:12:11,040 --> 00:12:13,320 Speaker 1: as he'd been going into anti Asian you know, chat 220 00:12:13,400 --> 00:12:17,120 Speaker 1: rooms talking about you know, what's wrong with the Asian community. 221 00:12:17,400 --> 00:12:21,280 Speaker 1: Has he himself sent threats via his computer, emails or 222 00:12:21,360 --> 00:12:25,079 Speaker 1: texts that say, you know, anti Asian sentiments, those kind 223 00:12:25,120 --> 00:12:27,240 Speaker 1: of things would be the kind of evidence that would 224 00:12:27,240 --> 00:12:30,400 Speaker 1: help the police understand that this is part of the motivation. 225 00:12:30,679 --> 00:12:32,800 Speaker 1: It's also true, you know, it is It is the 226 00:12:32,840 --> 00:12:36,600 Speaker 1: case that if we look back before the last administration, 227 00:12:37,400 --> 00:12:41,880 Speaker 1: we saw a spike in anti immigrant hate crimes, and 228 00:12:42,320 --> 00:12:46,320 Speaker 1: that spike was associated with legislation in multiple states. Studies 229 00:12:46,360 --> 00:12:50,000 Speaker 1: in California, as you remember, anti immigrant kind of legislation 230 00:12:50,040 --> 00:12:52,400 Speaker 1: that denied them rights or privileges or try to keep 231 00:12:52,400 --> 00:12:56,319 Speaker 1: immigrants out of community. And we saw that was followed 232 00:12:56,320 --> 00:12:59,000 Speaker 1: by a spike in hate crimes in those states. And 233 00:12:59,040 --> 00:13:02,000 Speaker 1: what happened is when we start to demonize a group 234 00:13:02,559 --> 00:13:04,600 Speaker 1: like that, at that point, it was immigrants. At this point, 235 00:13:04,760 --> 00:13:07,280 Speaker 1: because of the pandemic, it appears to be Asians and 236 00:13:07,320 --> 00:13:10,719 Speaker 1: Asian Americans. You know, that emboldened some people out there 237 00:13:10,720 --> 00:13:14,319 Speaker 1: to say, well, yeah, they don't deserve to be here. Well, yeah, 238 00:13:14,400 --> 00:13:16,320 Speaker 1: if I hurt one of them, no one's going to care. 239 00:13:16,800 --> 00:13:20,719 Speaker 1: And so that's the dynamic. And so that dynamic may 240 00:13:20,760 --> 00:13:23,400 Speaker 1: have been part of this. In other words, this individual 241 00:13:23,520 --> 00:13:26,560 Speaker 1: could have been emboldened to say he was always thinking 242 00:13:26,559 --> 00:13:29,079 Speaker 1: about something to do to them, but now with the 243 00:13:29,160 --> 00:13:32,640 Speaker 1: rhetoric of you know, the Asians associated with the pandemic, 244 00:13:32,679 --> 00:13:35,840 Speaker 1: which is completely wrong, it emboldened him to say, Okay, 245 00:13:35,840 --> 00:13:38,120 Speaker 1: well if I go out and act on this feeling, 246 00:13:38,160 --> 00:13:41,160 Speaker 1: I have, nobody's going to care. What's your take? Do 247 00:13:41,200 --> 00:13:45,199 Speaker 1: you think that the Atlanta shooting should be charged as 248 00:13:45,200 --> 00:13:48,960 Speaker 1: hate crimes? Well, obviously it should be charged as murder first, 249 00:13:49,440 --> 00:13:52,200 Speaker 1: but I also think that it would be very helpful 250 00:13:52,400 --> 00:13:55,079 Speaker 1: if they had the evidence to charge it as a 251 00:13:55,160 --> 00:13:57,600 Speaker 1: hate crime. And so they should be looking for, as 252 00:13:57,600 --> 00:14:01,439 Speaker 1: we talked about before, what kinds of state this individuals 253 00:14:01,440 --> 00:14:04,960 Speaker 1: made on social media, what kinds of chat rooms and 254 00:14:05,160 --> 00:14:07,920 Speaker 1: websites he's visited, to see if there's a case that 255 00:14:08,040 --> 00:14:12,760 Speaker 1: says he has articulated anti Asian bias and that that 256 00:14:12,920 --> 00:14:16,600 Speaker 1: may have contributed to the murders that he committed. Should 257 00:14:16,600 --> 00:14:21,920 Speaker 1: the bar be lowered for bringing hate crimes? Absolutely, we 258 00:14:21,960 --> 00:14:24,080 Speaker 1: don't have many. There's five thousands in a year in 259 00:14:24,120 --> 00:14:27,600 Speaker 1: the United States, so that's not a huge amount compared 260 00:14:27,640 --> 00:14:30,720 Speaker 1: to all of the other crimes that are being reported. 261 00:14:30,800 --> 00:14:34,520 Speaker 1: But to give you an example in Massachusetts, for a 262 00:14:34,520 --> 00:14:37,280 Speaker 1: hate crime to be found against a woman, in otherwise 263 00:14:37,360 --> 00:14:39,680 Speaker 1: the woman was the target of a hate crime, the 264 00:14:39,760 --> 00:14:43,120 Speaker 1: person hated women, which may be the case in obviously 265 00:14:43,120 --> 00:14:46,600 Speaker 1: the Atlantis situation. One has to show that the person 266 00:14:47,080 --> 00:14:49,680 Speaker 1: committed the act against a woman, But then they have 267 00:14:49,840 --> 00:14:55,000 Speaker 1: to show that they prior incidents where they had restraining 268 00:14:55,080 --> 00:14:57,720 Speaker 1: orders by different women in their path. So the bar 269 00:14:57,920 --> 00:15:00,760 Speaker 1: is so high to be able to get a anti 270 00:15:00,800 --> 00:15:03,680 Speaker 1: female hate crime. You know, you have to find this 271 00:15:03,720 --> 00:15:06,680 Speaker 1: case where this person has been a serial offender for 272 00:15:06,720 --> 00:15:09,760 Speaker 1: women and the documentation of it. And so I think 273 00:15:09,760 --> 00:15:12,440 Speaker 1: that yes, like I gave you the case with the crosses, 274 00:15:12,680 --> 00:15:16,080 Speaker 1: we tend to look for the most egregious crimes as 275 00:15:16,080 --> 00:15:19,800 Speaker 1: hate crimes and not some of the more everyday crimes 276 00:15:19,840 --> 00:15:23,120 Speaker 1: that we see. There are also bias motivating. It's important 277 00:15:23,120 --> 00:15:28,040 Speaker 1: to understand that people are incredibly vulnerable hate crime victims, 278 00:15:28,120 --> 00:15:30,120 Speaker 1: and the reason for that is that you carry the 279 00:15:30,160 --> 00:15:33,240 Speaker 1: cause of the victimization with you. And what I mean 280 00:15:33,280 --> 00:15:36,000 Speaker 1: by that is, as a criminologist, I could tell you 281 00:15:36,040 --> 00:15:38,840 Speaker 1: if your house was robbed, how to make it less 282 00:15:38,880 --> 00:15:41,360 Speaker 1: likely that your house would be robbed again, and you 283 00:15:41,360 --> 00:15:43,280 Speaker 1: can put in alarms, we could tell the police, We 284 00:15:43,280 --> 00:15:45,160 Speaker 1: could do a lot of things. But if you're attacked 285 00:15:45,160 --> 00:15:49,160 Speaker 1: because you're black, or somebody perceives you as Jewish or 286 00:15:49,200 --> 00:15:53,240 Speaker 1: your Asian, what do you do to make yourself feel safer? 287 00:15:53,560 --> 00:15:56,440 Speaker 1: Wherever you go? You still carry that characteristic with you. 288 00:15:57,000 --> 00:15:59,040 Speaker 1: And so that's one of the reasons that hate crimes 289 00:15:59,040 --> 00:16:02,240 Speaker 1: are different and they call for different kinds of responses. 290 00:16:02,680 --> 00:16:05,560 Speaker 1: Thanks for being on the Bloomberg Law show Jack. That's 291 00:16:05,560 --> 00:16:08,920 Speaker 1: Professor Jack McDevitt of the School of Criminology and Criminal 292 00:16:09,000 --> 00:16:12,640 Speaker 1: Justice at Northeastern University and director of the Institute for 293 00:16:12,760 --> 00:16:17,840 Speaker 1: Race and Justice. Supreme Court Justice has indicated Tuesday that 294 00:16:17,880 --> 00:16:21,560 Speaker 1: an Appeals Court ruling could harm public safety on American 295 00:16:21,600 --> 00:16:26,000 Speaker 1: Indian reservations, with several justice is raising concerns ranging from 296 00:16:26,160 --> 00:16:30,040 Speaker 1: drunk drivers to serial killers. Joining me is Bloomberg Law 297 00:16:30,080 --> 00:16:33,480 Speaker 1: reporter Jordan Ruben. Jordan tell us about the incident in 298 00:16:33,480 --> 00:16:38,120 Speaker 1: the case, So, Joshua James Cooley was pulled over on 299 00:16:38,160 --> 00:16:42,320 Speaker 1: the side of the road US Roots Well around one 300 00:16:42,360 --> 00:16:46,760 Speaker 1: in the morning one night in February. And this road 301 00:16:46,840 --> 00:16:50,360 Speaker 1: that he was pulled over to the side of runs 302 00:16:50,400 --> 00:16:54,680 Speaker 1: through the Crow Reservation in Montana, and there was a 303 00:16:54,720 --> 00:16:58,240 Speaker 1: Crow Highway officer who went over to check on the 304 00:16:58,280 --> 00:17:02,160 Speaker 1: truck because it's an area that didn't get great phone reception, 305 00:17:02,280 --> 00:17:05,439 Speaker 1: so it wasn't necessarily looking for criminal reasons, just to 306 00:17:05,520 --> 00:17:08,280 Speaker 1: check to see what was going on. And there was 307 00:17:08,359 --> 00:17:11,920 Speaker 1: a lengthy encounter. Then when the officer went to the car, 308 00:17:12,040 --> 00:17:14,360 Speaker 1: Coolie actually had a young child with him as well 309 00:17:14,400 --> 00:17:19,480 Speaker 1: as multiple guns. And it turns out the methamphetamine and 310 00:17:19,840 --> 00:17:24,760 Speaker 1: Coolie wound up getting charged federally because as a non 311 00:17:24,880 --> 00:17:29,520 Speaker 1: native person, the tribe didn't have jurisdiction over him. But 312 00:17:29,680 --> 00:17:33,680 Speaker 1: even though he was being charged in federal court, Coolie 313 00:17:33,760 --> 00:17:37,640 Speaker 1: said that because he was initially detained and searched by 314 00:17:37,680 --> 00:17:41,840 Speaker 1: a tribal officer, that tribal officer didn't have jurisdiction, and 315 00:17:41,880 --> 00:17:44,920 Speaker 1: so he moved to suppress the evidence on those grounds. 316 00:17:45,600 --> 00:17:49,440 Speaker 1: And what did the Ninth Circuit rule? The Ninth Circuit 317 00:17:50,200 --> 00:17:54,880 Speaker 1: approved the granting of the suppression motions. So the Ninth Circuit, 318 00:17:54,960 --> 00:17:59,680 Speaker 1: like the federal district court, ruled in favor of Coolie. 319 00:18:00,080 --> 00:18:06,560 Speaker 1: They said that the tribal officers jurisdiction is limited in 320 00:18:06,760 --> 00:18:09,760 Speaker 1: the following way. They said that an officer can stop 321 00:18:09,760 --> 00:18:14,119 Speaker 1: a person who's traveling on this public right away within 322 00:18:14,400 --> 00:18:18,280 Speaker 1: the reservation to determine whether they're Indian and therefore whose 323 00:18:18,359 --> 00:18:22,880 Speaker 1: jurisdiction they'd fall under, and if they're not, or if 324 00:18:22,880 --> 00:18:25,600 Speaker 1: they're not able to determine this, then the officer can 325 00:18:25,640 --> 00:18:28,680 Speaker 1: only detain the person to then turn them over to 326 00:18:28,760 --> 00:18:32,480 Speaker 1: state or federal authorities if it's a parent or obvious 327 00:18:32,840 --> 00:18:37,520 Speaker 1: that state or federal law is being violated. So in 328 00:18:37,560 --> 00:18:41,160 Speaker 1: this instance, wasn't it apparent when he saw the guns 329 00:18:41,760 --> 00:18:45,760 Speaker 1: that state law is being violated. Well, there's a question 330 00:18:45,960 --> 00:18:49,840 Speaker 1: over at what point those laws would kick in, and 331 00:18:49,920 --> 00:18:52,760 Speaker 1: so Coolly would say that by the time that they 332 00:18:52,760 --> 00:18:57,120 Speaker 1: were deeper into this interaction, that the officer had already 333 00:18:57,240 --> 00:19:01,320 Speaker 1: violated his jurisdiction because at the point where the officer 334 00:19:01,840 --> 00:19:04,560 Speaker 1: determined that he is a non Indian, that should have 335 00:19:04,920 --> 00:19:08,359 Speaker 1: ended the matter. And then the Crow officers should have 336 00:19:08,640 --> 00:19:11,359 Speaker 1: called for back up at that point and not done 337 00:19:11,640 --> 00:19:14,679 Speaker 1: anything further in terms of delving into the car and 338 00:19:14,760 --> 00:19:19,560 Speaker 1: continuing the interaction. And so it's an additional question which 339 00:19:19,600 --> 00:19:21,879 Speaker 1: came up during the argument in the case as to 340 00:19:21,960 --> 00:19:25,720 Speaker 1: what counts as a parent or obvious. But the government 341 00:19:25,760 --> 00:19:29,359 Speaker 1: is saying that this is a basically an additional, unnecessary 342 00:19:29,400 --> 00:19:34,040 Speaker 1: standard that's grafted onto the usual reasonable suspicions standard that 343 00:19:34,119 --> 00:19:38,880 Speaker 1: cops would need in normal roadside interactions. So the Justice 344 00:19:38,920 --> 00:19:44,520 Speaker 1: Department is fighting the Ninth Circuit decision and with the 345 00:19:44,560 --> 00:19:48,359 Speaker 1: backing of the tribes, yes not just the Crow tribe, 346 00:19:48,400 --> 00:19:52,760 Speaker 1: but many other tribes and other similar interest groups as well, 347 00:19:52,880 --> 00:19:56,000 Speaker 1: because it's a ruling that could have wide implication across 348 00:19:56,000 --> 00:20:00,560 Speaker 1: the country. Is this a challenge to tribal sovereignty. I 349 00:20:00,640 --> 00:20:04,040 Speaker 1: think that that's certainly one way to look at it, 350 00:20:04,080 --> 00:20:08,800 Speaker 1: because the whole backdrop of these cases is stemming from 351 00:20:08,840 --> 00:20:13,520 Speaker 1: this really long and pretty sordid history of tribes being 352 00:20:13,720 --> 00:20:17,080 Speaker 1: dispossessed of their land, and they're all of these important 353 00:20:17,160 --> 00:20:21,360 Speaker 1: questions of what jurisdiction they have left. And so it's 354 00:20:21,400 --> 00:20:24,960 Speaker 1: against that backdrop that the federal government is saying. The 355 00:20:25,000 --> 00:20:28,800 Speaker 1: tribes are saying too, that they have at the very 356 00:20:28,880 --> 00:20:33,240 Speaker 1: least this limited authority to maintain some semblance of order 357 00:20:33,760 --> 00:20:36,240 Speaker 1: on their reservations, and so they see it as a 358 00:20:36,320 --> 00:20:39,240 Speaker 1: challenge to that. They see Cooley's argument and the Ninth 359 00:20:39,320 --> 00:20:43,359 Speaker 1: Circuits argument as really challenged them at least being able 360 00:20:43,400 --> 00:20:48,199 Speaker 1: to maintain this order on their reservations. So the geice's 361 00:20:48,320 --> 00:20:52,600 Speaker 1: concerns seemed to run the gamut from drunk drivers to 362 00:20:52,800 --> 00:20:58,160 Speaker 1: serial killers. Tell us about that, right, So this complicated 363 00:20:58,440 --> 00:21:02,720 Speaker 1: setup where you can only do limited things in terms 364 00:21:02,720 --> 00:21:06,439 Speaker 1: of determining someone's status, raises all these questions of what 365 00:21:06,640 --> 00:21:09,040 Speaker 1: exactly an officers allowed to do and what they're supposed 366 00:21:09,080 --> 00:21:12,240 Speaker 1: to do. Justice Thomas, for example, raised the question of 367 00:21:12,560 --> 00:21:15,000 Speaker 1: what if the driver fits the description of a known 368 00:21:15,000 --> 00:21:18,480 Speaker 1: serial killer, but they didn't commit any crimes on the 369 00:21:18,480 --> 00:21:21,720 Speaker 1: reservation and they're non Indian under the Nine Circuits rule, 370 00:21:22,000 --> 00:21:24,520 Speaker 1: would the officer then just have to let that person go? 371 00:21:25,520 --> 00:21:30,119 Speaker 1: Questions like that where it raises the issue of what 372 00:21:30,320 --> 00:21:33,520 Speaker 1: exactly officers are allowed to do and whether the Ninth 373 00:21:33,560 --> 00:21:37,800 Speaker 1: Circuits rule is workable and safe. And a bunch of 374 00:21:37,800 --> 00:21:42,080 Speaker 1: the justices, obviously along with the Justice Department, suggested that 375 00:21:42,680 --> 00:21:46,320 Speaker 1: the status quo in the Ninth Circuit is not good 376 00:21:46,320 --> 00:21:49,160 Speaker 1: and not safe, and that's what's leading them to challenge 377 00:21:49,240 --> 00:21:52,359 Speaker 1: that ruling on appeal. So, Jordan, what was the best 378 00:21:52,560 --> 00:21:56,520 Speaker 1: argument made by the defendants attorney? So in a lot 379 00:21:56,520 --> 00:21:59,480 Speaker 1: of cases, there will be one side that's focusing on 380 00:22:00,240 --> 00:22:03,320 Speaker 1: all of these negative consequences that can come out of 381 00:22:03,400 --> 00:22:06,800 Speaker 1: parade of horribles. I think the the sense was looking 382 00:22:06,840 --> 00:22:10,960 Speaker 1: to not really get into that and just say, look, 383 00:22:11,480 --> 00:22:14,240 Speaker 1: this is more of just a straightforward matter of whether 384 00:22:14,320 --> 00:22:17,840 Speaker 1: the tribe has this jurisdiction, and his arguments was that 385 00:22:17,880 --> 00:22:22,520 Speaker 1: they don't, and this is the legal argument that he made, 386 00:22:22,520 --> 00:22:25,000 Speaker 1: but it also could potentially go to the practical concern. 387 00:22:25,080 --> 00:22:28,240 Speaker 1: He said that a lot of issues can be avoided 388 00:22:28,320 --> 00:22:34,240 Speaker 1: by cross deputizing tribal officers with other jurisdictions than that way, 389 00:22:34,520 --> 00:22:37,720 Speaker 1: they'd be able to act under the authority of these 390 00:22:37,760 --> 00:22:42,040 Speaker 1: other jurisdictions. And the Justice Department in turn had responses 391 00:22:42,080 --> 00:22:44,320 Speaker 1: to that and talking about why the government thinks that 392 00:22:44,320 --> 00:22:48,200 Speaker 1: that's unworkable. But there certainly are arguments to be had 393 00:22:48,320 --> 00:22:51,160 Speaker 1: on the other side. Just after the argument, it's not 394 00:22:51,240 --> 00:22:54,360 Speaker 1: clear to me that they're going to carry the day here. 395 00:22:54,960 --> 00:22:58,840 Speaker 1: And Chief Justice Roberts said that the Supreme Court has 396 00:22:58,920 --> 00:23:04,160 Speaker 1: recognized that tribes retain some inherent authority. Did he explain 397 00:23:04,200 --> 00:23:08,080 Speaker 1: what he meant by inherent authority? Well, that's an important 398 00:23:08,119 --> 00:23:11,159 Speaker 1: point that really sets the whole backdrop here in what 399 00:23:11,240 --> 00:23:14,280 Speaker 1: I mentioned before and talking about how, you know, just 400 00:23:14,320 --> 00:23:17,280 Speaker 1: the fact of a reservation. We're talking about land that 401 00:23:17,440 --> 00:23:22,000 Speaker 1: is still left that tribes have. And so the issue, 402 00:23:22,080 --> 00:23:24,600 Speaker 1: and this is an issue that the government is putting forth, 403 00:23:24,720 --> 00:23:28,399 Speaker 1: is that that's what gives them this jurisdiction, at least 404 00:23:28,400 --> 00:23:32,360 Speaker 1: this limited instance temporarily before they turn a person over, 405 00:23:32,640 --> 00:23:37,080 Speaker 1: is this inherent authority to act in this way. And 406 00:23:37,160 --> 00:23:39,800 Speaker 1: so it's really an issue that kind of paints the 407 00:23:39,800 --> 00:23:44,840 Speaker 1: whole backdrop here because even though the justices seemed sympathetic 408 00:23:44,960 --> 00:23:49,440 Speaker 1: to the government's argument. There's still debates over where exactly 409 00:23:49,920 --> 00:23:53,760 Speaker 1: this native authority comes from, and there are different aspects 410 00:23:53,800 --> 00:23:56,359 Speaker 1: to that. And so while it does seem like the 411 00:23:56,400 --> 00:24:00,480 Speaker 1: Court is sympathetic deciding with the government, it's not exactly 412 00:24:00,520 --> 00:24:03,919 Speaker 1: clear on what grounds they're going to do that. Former 413 00:24:03,920 --> 00:24:08,360 Speaker 1: federal prosecutor is appointed by both Democratic and Republican presidents, 414 00:24:08,840 --> 00:24:12,400 Speaker 1: told the court in a statement that Indian country criminal 415 00:24:12,520 --> 00:24:17,159 Speaker 1: jurisdiction is quote a confounding morass for tribal, federal and 416 00:24:17,280 --> 00:24:21,960 Speaker 1: state authorities. After hearing these arguments and in studying this case, 417 00:24:22,000 --> 00:24:25,520 Speaker 1: does that sound about right? I think so. And that's 418 00:24:25,520 --> 00:24:29,080 Speaker 1: the point that I think Justice Kavanaugh latched onto during 419 00:24:29,119 --> 00:24:32,919 Speaker 1: the argument where Justice Kavanaugh raised the point that and 420 00:24:33,000 --> 00:24:37,919 Speaker 1: this was while the defendant, Cooley's lawyer, was arguing and saying, look, 421 00:24:38,480 --> 00:24:42,359 Speaker 1: the government's argument might have some things to criticize about it, 422 00:24:42,400 --> 00:24:44,480 Speaker 1: but Justice Kavanaugh was saying, there's something to be said 423 00:24:44,520 --> 00:24:48,119 Speaker 1: for trying not to do further damage in a sense 424 00:24:48,160 --> 00:24:51,320 Speaker 1: to this complicated morass and just trying to keep being 425 00:24:51,359 --> 00:24:53,920 Speaker 1: simple here. And so there's no doubt, no matter which 426 00:24:53,960 --> 00:24:56,360 Speaker 1: side of this year on that This is a complicated 427 00:24:56,520 --> 00:24:59,159 Speaker 1: area of the law, and so hopefully at least one 428 00:24:59,200 --> 00:25:01,480 Speaker 1: thing that the court can do here is maybe try 429 00:25:01,560 --> 00:25:05,919 Speaker 1: and clear up just how all these different interlocking laws 430 00:25:05,960 --> 00:25:09,600 Speaker 1: apply here. What was justice course? It just take in particular, 431 00:25:09,680 --> 00:25:13,280 Speaker 1: since he was the justice who wrote the opinion in 432 00:25:13,320 --> 00:25:16,640 Speaker 1: the Oklahoma case, that's right, he wrote the mc grant 433 00:25:16,720 --> 00:25:20,080 Speaker 1: decision last year, and that was an incredibly important opinion 434 00:25:20,200 --> 00:25:23,000 Speaker 1: for tribal sovereignty, which also arose in a criminal case. 435 00:25:23,040 --> 00:25:25,719 Speaker 1: So at a very broad level, it does have some 436 00:25:25,840 --> 00:25:29,560 Speaker 1: similarities with this case. It does seem like justice Course, 437 00:25:29,600 --> 00:25:34,240 Speaker 1: which is inclined to side on the tribal side of things. Again, 438 00:25:34,280 --> 00:25:36,720 Speaker 1: although in this case the issue is being raised by 439 00:25:36,760 --> 00:25:39,680 Speaker 1: the federal government and that's the tribes who are as 440 00:25:39,680 --> 00:25:43,840 Speaker 1: an amaricust supporting the government. He raised again this issue 441 00:25:43,920 --> 00:25:48,920 Speaker 1: which I think tribal observers appreciated in talking about looking 442 00:25:48,960 --> 00:25:52,439 Speaker 1: at it from the standpoint of what authority do the 443 00:25:52,520 --> 00:25:56,240 Speaker 1: tribes have left? And starting from that standpoint, and so 444 00:25:56,359 --> 00:26:00,280 Speaker 1: from the point of if it hasn't been taken away, 445 00:26:00,359 --> 00:26:02,359 Speaker 1: then its authority that they still have. And that's a 446 00:26:02,480 --> 00:26:07,639 Speaker 1: very important principle that Native American law practitioners looked to, 447 00:26:07,880 --> 00:26:11,879 Speaker 1: and so they saw Justice Gorsuch's questions as good ones 448 00:26:11,960 --> 00:26:15,040 Speaker 1: for the federal government and the tribe in this case. 449 00:26:15,800 --> 00:26:18,960 Speaker 1: Just a general question, if a crime is committed on 450 00:26:19,000 --> 00:26:23,119 Speaker 1: an Indian reservation by a non Indian, can that person 451 00:26:23,200 --> 00:26:26,719 Speaker 1: be tried in the tribal courts? No, they can't, and 452 00:26:26,760 --> 00:26:31,440 Speaker 1: that's based on prior Supreme Court precedent, which isn'n at 453 00:26:31,520 --> 00:26:34,280 Speaker 1: issue here. But it's one thing that complicates matters. That's 454 00:26:34,320 --> 00:26:38,280 Speaker 1: part of what goes to the jurisdiction argument that the 455 00:26:38,359 --> 00:26:41,480 Speaker 1: officer in this case, the crow Chipe officer, didn't have 456 00:26:41,600 --> 00:26:45,560 Speaker 1: jurisdiction even for this limited purpose. Let's turn to something 457 00:26:45,600 --> 00:26:50,200 Speaker 1: else Supreme Court related, and that's the appeal in the 458 00:26:50,240 --> 00:26:53,920 Speaker 1: case of the marathon bomber Joe Harris and Nayev, and 459 00:26:54,000 --> 00:26:56,480 Speaker 1: the Supreme Court decided to take the appeal. What's the 460 00:26:56,560 --> 00:26:59,600 Speaker 1: focus of the appeal. The focus of the appeal has 461 00:26:59,680 --> 00:27:03,439 Speaker 1: to do with pre trial publicity, and the First Circuit 462 00:27:03,520 --> 00:27:07,280 Speaker 1: Court of Appeals this past summer said that the trial 463 00:27:07,440 --> 00:27:11,480 Speaker 1: judge in the case didn't do enough to probe jurors 464 00:27:11,560 --> 00:27:15,639 Speaker 1: about it. And so obviously this was a hugely public 465 00:27:15,760 --> 00:27:18,320 Speaker 1: case and a lot of media attention and the Appeals 466 00:27:18,359 --> 00:27:22,760 Speaker 1: Court wounds up reversing the death sentences on those grounds, 467 00:27:23,560 --> 00:27:27,320 Speaker 1: and this petition was pending for months. Does it seem 468 00:27:27,440 --> 00:27:30,840 Speaker 1: odd that the Justice has decided to take the case 469 00:27:31,320 --> 00:27:36,320 Speaker 1: even when the administration has changed and the position on 470 00:27:36,440 --> 00:27:40,480 Speaker 1: the death penalty may change. Does it seems strange? Yes? 471 00:27:40,560 --> 00:27:43,840 Speaker 1: And no. So the reason that you could argue that 472 00:27:43,920 --> 00:27:47,520 Speaker 1: it's strange is because there is this new administration. Obviously, 473 00:27:47,600 --> 00:27:51,600 Speaker 1: President Biden has said that he opposes the death penalty, 474 00:27:51,720 --> 00:27:54,000 Speaker 1: and so you might think that the Court will be 475 00:27:54,680 --> 00:27:57,359 Speaker 1: at least waiting to see whether the Justice Department now 476 00:27:57,480 --> 00:28:00,600 Speaker 1: under him might withdraw the petition. But on the no 477 00:28:01,640 --> 00:28:04,200 Speaker 1: side of it, I think, by looking at the way 478 00:28:04,280 --> 00:28:07,760 Speaker 1: the calendar worked out here is that there was a conference, 479 00:28:07,960 --> 00:28:10,240 Speaker 1: a whole conference at least a week that went by 480 00:28:10,840 --> 00:28:14,560 Speaker 1: since the time that Merrick Garland was appointed Attorney General, 481 00:28:14,640 --> 00:28:17,520 Speaker 1: And that was one important step that I thought maybe 482 00:28:17,600 --> 00:28:20,840 Speaker 1: the Court was waiting on to see whether they would 483 00:28:20,840 --> 00:28:23,720 Speaker 1: take the case or not. And between the time that 484 00:28:23,800 --> 00:28:27,680 Speaker 1: Garland was appointed and the Court's decisions to grant the case, 485 00:28:28,040 --> 00:28:30,200 Speaker 1: there was a couple of weeks that had gone by 486 00:28:30,400 --> 00:28:32,560 Speaker 1: and there was no word from the Justice Department. So 487 00:28:32,680 --> 00:28:35,720 Speaker 1: I think it it's very possible that the Court was 488 00:28:35,840 --> 00:28:38,760 Speaker 1: waiting to see what the Justice Department did, and that's 489 00:28:38,760 --> 00:28:40,800 Speaker 1: why the Court didn't do anything for all these months, 490 00:28:40,840 --> 00:28:44,480 Speaker 1: and then perhaps said, look, this new administration, whatever it's 491 00:28:44,480 --> 00:28:48,120 Speaker 1: going to do, it had the opportunity to change its position, 492 00:28:48,240 --> 00:28:50,360 Speaker 1: and so we're going to grant the case. Now the 493 00:28:50,400 --> 00:28:53,400 Speaker 1: administration could still change its position, but now it's going 494 00:28:53,480 --> 00:28:56,280 Speaker 1: to have to do it in a slightly more awkward 495 00:28:56,360 --> 00:29:00,080 Speaker 1: posture if it does. The administration has changed position in 496 00:29:00,680 --> 00:29:03,880 Speaker 1: at least five times since Joe Biden became president, so 497 00:29:04,080 --> 00:29:06,800 Speaker 1: I suppose it won't be so unusual for it to 498 00:29:06,880 --> 00:29:10,040 Speaker 1: do it here, right, And so again that goes to 499 00:29:10,160 --> 00:29:12,960 Speaker 1: the point of the Court knows that this administration knows 500 00:29:13,040 --> 00:29:16,880 Speaker 1: how to change positions, and so it certainly had the 501 00:29:16,920 --> 00:29:20,800 Speaker 1: opportunity to do so before the Court granted review in 502 00:29:20,960 --> 00:29:23,479 Speaker 1: the Cernai of case. But for whatever reason, the Justice 503 00:29:23,520 --> 00:29:26,600 Speaker 1: Department chose not to do anything, at least not yet. 504 00:29:26,880 --> 00:29:31,080 Speaker 1: Thanks Jordan's that's Bloomberg Law reporter Jordan Ruben, and that's 505 00:29:31,120 --> 00:29:33,680 Speaker 1: it for the edition of the Bloomberg Law Show. Remember 506 00:29:33,680 --> 00:29:35,360 Speaker 1: you can always at the latest legal news on our 507 00:29:35,360 --> 00:29:39,160 Speaker 1: Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, 508 00:29:39,320 --> 00:29:44,160 Speaker 1: and at www dot bloomberg dot com slash podcast slash Law. 509 00:29:44,640 --> 00:29:47,360 Speaker 1: I'm June Grasso. Thanks so much for listening, and please 510 00:29:47,400 --> 00:29:49,240 Speaker 1: turn into The Bloomberg Law Show every week and then 511 00:29:49,320 --> 00:29:52,280 Speaker 1: at Chenpian Eastern right here on Bloomberg Radio