Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio.
Speaker 1: Thousands of people in cities across the country rallied last
Speaker 1: weekend to stop anti Asian hate, a response to the
Speaker 1: wave of violence against Asian Americans and the deadly shootings
Speaker 1: at three Atlanta area spots. At a rally in Los Angeles,
Speaker 1: State Assembly Member David Chew said more must be done
Speaker 1: to stop the violence. After a year of political rhetoric
Speaker 1: demonizing Asian communities, enough is enough. We need leadership across
Speaker 1: our country, in every state, at every level of society
Speaker 1: to take action and bring justice to our victims. We've
Speaker 1: got to stand up to these hate crons. Prosecutors in
Speaker 1: the Georgia case have not yet decided whether to pursue
Speaker 1: a hate crime sentencing enhancement to the murder charges the
Speaker 1: defense and is already facing. In fact, incidents of assault
Speaker 1: and harassment that look like hate crimes are often not
Speaker 1: charged as hate crimes because of the legal requirements. Joining
Speaker 1: me is Jack mcdevit, a professor at the School of
Speaker 1: Criminology and Criminal Justice at Northeastern University and director of
Speaker 1: the Institute for Race and Justice. What is the definition
Speaker 1: the legal definition of a hate crime. I hate crime
Speaker 1: is a criminal incident that's motivated either entirely in part
Speaker 1: by a person's difference. And we're talking about hate crimes,
Speaker 1: we're talking about criminal incidence. We're not talking about things
Speaker 1: that would be non criminal. So, for example, if someone
Speaker 1: uses a racial slur, that's protected speech in the United States,
Speaker 1: so that wouldn't be a hate crime. Even if someone
Speaker 1: gave a speech and said, you know, I believe that
Speaker 1: all of this group should not be in the United States,
Speaker 1: that's not a hate crime. So we're talking about crimes
Speaker 1: like assaults, threats, harassment, things like that that are already
Speaker 1: criminal incident. And then the motivation for it is the
Speaker 1: person's difference. But the important out of that is in
Speaker 1: most states it has to be only partial motivation. So
Speaker 1: in other words, if you think about a crime where
Speaker 1: someone might decide to go rob people and they choose
Speaker 1: to rob immigrants, so people they perceived to be immigrants
Speaker 1: because they think they won't go to the police, and
Speaker 1: that's still a hate crime and a robbery. It seems
Speaker 1: as if it, I don't know, if it's you know,
Speaker 1: the fault of police, the fault of prosecutors that hate
Speaker 1: crimes aren't being charged in all the incidents when they
Speaker 1: could be. That's absolutely true. Both groups have some fault
Speaker 1: in this. So for example, if we're talking about a
Speaker 1: victim comes to the police and says that they were
Speaker 1: a victim of a hate crime, sometimes the police we'll
Speaker 1: tell him, no, it wasn't just go on about your business.
Speaker 1: It was just kids playing or something. And in that way,
Speaker 1: the police would be the ones that were causing it
Speaker 1: not to be recorded as a hate crime. On the
Speaker 1: other side, process cut is frequently say, let's think about
Speaker 1: the cases in Oakland. When you see on the video
Speaker 1: take people being thrown to the ground, that's an assault,
Speaker 1: assault and battery. And what the prosecutor might say is
Speaker 1: with this video, I can get a jury to convict
Speaker 1: pretty easily on an assault and battery charge. But if
Speaker 1: I then add on a hate crime charge that says
Speaker 1: that they assaulted them because they were Asian, I have
Speaker 1: to have different evidence and more evidence to prove that part.
Speaker 1: And it's easy for me to get the conviction on
Speaker 1: the assault. So why would I make my life more
Speaker 1: complicated by trying to get the conviction on the hate
Speaker 1: crime too? And the reason to get the conviction on
Speaker 1: the hate crime is so that the perpetrator, if convicted,
Speaker 1: gets more prison time. I'd say that's one, but not
Speaker 1: the most important reason. The most important reason is to
Speaker 1: say to the members of that community that we understand
Speaker 1: these crimes are motivated by bias, and that we are
Speaker 1: gonna take them seriously and we're going to try to
Speaker 1: protect you. And so the more important reason to use
Speaker 1: the hate crime charge is to send a message back
Speaker 1: to the members of the community that's being attacked that
Speaker 1: we don't share the bias of the offender, and that
Speaker 1: we reject the notion that you shouldn't be in this community.
Speaker 1: Hate crimes are symbolic. The offenders want to send a
Speaker 1: message that we don't want you in our community, our workplace,
Speaker 1: our college, campus, are high school, and we have the
Speaker 1: society have to send a message back that we reject
Speaker 1: those notions, that we want a more diverse society and
Speaker 1: we want everyone to be a functioning part of that society.
Speaker 1: What kind of evidence can a prosecutor introduce to prove
Speaker 1: something is a hate crime. I take it if someone
Speaker 1: yells a slur and while they're committing the crime, but
Speaker 1: what other kinds of things, Well, you're exactly right. The
Speaker 1: most common evidence is nin calling and slur during the
Speaker 1: course of an event. Often offenders will say you know
Speaker 1: you so and so go back to your own country,
Speaker 1: or you don't belong here or whatever. But more commonly
Speaker 1: these days are increasingly common these days, one of the
Speaker 1: things that happens is that individuals will go into chat rooms,
Speaker 1: and so when the police make an arrest, they generally
Speaker 1: seize the computer to see what kinds of searches people
Speaker 1: have been doing. And we see more and more these
Speaker 1: days that offenders go into chat rooms of like minded
Speaker 1: people who feel that, you know, that share their biases,
Speaker 1: and they get egg gone to act them out in
Speaker 1: these chat rooms. So if they see somebody who's been
Speaker 1: in the chat room been saying things like we should
Speaker 1: get rid of all of this group of our community
Speaker 1: or whatever, that is also part of the evidence that
Speaker 1: can be used at trial. Now, in order to charge
Speaker 1: a hate crime, does the state itself have to have
Speaker 1: hate crime legislation in place, or we now have federal
Speaker 1: legislation with the James Bird Matthew Shepherd Act, we have
Speaker 1: federal legislation that could be charged federally. But the vast
Speaker 1: majority of them will be charged at the state level, right,
Speaker 1: and each state has a differention of hate crime laws,
Speaker 1: which makes it complicated. So, for example, lgbt Q for
Speaker 1: oaks are protected in most states, but not all as
Speaker 1: a protected group. Women interestingly enough are not protected in
Speaker 1: every state, but only in some, so we do have
Speaker 1: a bit of a patchwork across the country of laws.
Speaker 1: Some of them are standalone laws that say, you know,
Speaker 1: if you commit this or bias, it's a crime. Others,
Speaker 1: as you suggested before, what they call sentence enhancements, which
Speaker 1: means that if you commit an assault and you get
Speaker 1: a penalty of five to ten years in prison, if
Speaker 1: it's bias motivated, we can add a year or two
Speaker 1: years onto that penalty. What does it take to get
Speaker 1: federal prosecutors to charge a hate crime? They're rare. But
Speaker 1: what we're looking at from January six is a bunch
Speaker 1: of federal prosecutions for the rioters who went at the capital.
Speaker 1: And so generally speaking, it has to be a federal nexus,
Speaker 1: and what I mean by that it has to be
Speaker 1: on federal land or dealing with someone who's involved with
Speaker 1: providing federal services. And we can then go ahead and
Speaker 1: Chary gen on the federal system. Those more common federal
Speaker 1: approaches though, that what will happen is the FBI will
Speaker 1: offer services support services to a local law enforcement agency.
Speaker 1: And that's really helpful and important because these are rare events.
Speaker 1: We you know, we see them a lot in the media,
Speaker 1: but an individual jurisdiction where you might have a police
Speaker 1: department who's dealing with regular, normal crime, they may not
Speaker 1: see more than a handful of them in a year,
Speaker 1: and so to have the expertise of the FBI be
Speaker 1: able to come in and help you, and also the
Speaker 1: resources of the FBI to help with an investigation is
Speaker 1: very beneficial. Even though forty seven states have hate crimes,
Speaker 1: eight six point one per cent of law enforcement agencies
Speaker 1: reported to the FBI that not a single hate crime
Speaker 1: had occurred in their jurisdiction in according to FBI data.
Speaker 1: Is that because they don't want to show that those
Speaker 1: crimes are there, because they just don't recognize them. I
Speaker 1: think it's both of those things, and it's also honest
Speaker 1: reporting in some cases. So I think you're you're very
Speaker 1: insightful what you say. Some police departments go back. I
Speaker 1: started training police on this with the FBI in the
Speaker 1: so and then those days, they were all afraid that
Speaker 1: their community was going to be called racist, and they
Speaker 1: didn't want to report hate crimes because they're afraid of
Speaker 1: what it will do to businesses and property and their community.
Speaker 1: I think we're mostly past that now, but obviously some
Speaker 1: departments still are afraid of that. So there's some of that.
Speaker 1: The other thing is that frequently, as I was saying,
Speaker 1: police don't want to get involved in a case where
Speaker 1: some of those rocks to someone's window, and they would
Speaker 1: rather report as vandalism, and so they just make mistakes.
Speaker 1: And I'll give you an example of one in a moment.
Speaker 1: And then we also have places where there are obviously
Speaker 1: hate crimes. We've had big cities of over a hundred
Speaker 1: thousand population that have reported zero hate crimes over the years.
Speaker 1: And that's just crazy, and that means that there's not
Speaker 1: a commitment to prosecuting hey crimes. What we've done in
Speaker 1: our research and others have looked at it is and
Speaker 1: we talked to police departments across the country about hate crimes,
Speaker 1: and and I'll give you one anecdote. We went to
Speaker 1: a police department in California one time, and we were saying,
Speaker 1: you have reported zero hate crimes. Have you ever had
Speaker 1: one that you thought was a hate crime? And they said, yes,
Speaker 1: you know, I want to tell you about it. We
Speaker 1: thought we had a hate crime. We investigated and it
Speaker 1: turned out it wasn't. And so I said, well, what
Speaker 1: did you learn. Well, a black family moved into an
Speaker 1: all white neighborhood and somebody burned a couple of crosses
Speaker 1: on their lawn. And I was lit incredulous and said, um,
Speaker 1: how could that not be a hate crime? And they said, well,
Speaker 1: we went and we got the crosses and we looked
Speaker 1: at them, and it turned out they were really small crosses.
Speaker 1: They were less than a foot tall. There were four
Speaker 1: of them, but they were all really small. And in
Speaker 1: the police department's mind, you know, it had to be
Speaker 1: a six ft cross wrapped in rags like they've seen
Speaker 1: intelligion and they said, oh, this was just kids. This
Speaker 1: isn't a real hate crime. So sometimes agencies just need
Speaker 1: to understand more about how these things manifest themselves. So
Speaker 1: that brings up Atlanta, where out of eight victims, six
Speaker 1: were Asian, two were white, from two different businesses, and
Speaker 1: the suspect denies being motivated by racial animus. How should
Speaker 1: the police and the prosecutors be proceeding here to get
Speaker 1: to the bottom of it. It's a great question and
Speaker 1: it is a difficult case, but they should be looking at,
Speaker 1: you know, what made this individual target these particular establishments.
Speaker 1: They individual and the media reports is saying that they
Speaker 1: have a sex addiction and they were trying to remove temptation.
Speaker 1: But that's what a lot of hate creme offenders say.
Speaker 1: If these people weren't here, I would be better off.
Speaker 1: What we find is most hate creme offenders tend to
Speaker 1: be people who are not successful. There are people who
Speaker 1: are to work, or their marriage has dissolved, or their
Speaker 1: families having fights with them, and they're blaming somebody else
Speaker 1: for the situation they find themselves in. And it seems
Speaker 1: like this individual fits that model to a t blaming
Speaker 1: the women working in the massage powers for his sex addiction.
Speaker 1: And so I would definitely look at it as a
Speaker 1: potential hate crime. Obviously the murders as well. But I
Speaker 1: mean to send the message to the Asian community. As
Speaker 1: you know, looking across the country right now, members of
Speaker 1: the Asian community are incredibly frightened and they go out
Speaker 1: in groups as opposed to singly. They have patrols to
Speaker 1: support their elderly members of the community, and we need
Speaker 1: to send messages back that we're not going to tolerate
Speaker 1: people attacking members of the Asian or the Asian American community.
Speaker 1: And one way to do that is to charge and
Speaker 1: get convictions in hate crime offenses. So what would they
Speaker 1: have to show in Atlanta? It's not enough that there
Speaker 1: were six Asians out of eight victims of the businesses
Speaker 1: were owned by Asians. If he doesn't actually say it,
Speaker 1: they look through his background to find to his background,
Speaker 1: they look through the computer sits he's been saying it,
Speaker 1: as he'd been going into anti Asian you know, chat
Speaker 1: rooms talking about you know, what's wrong with the Asian community.
Speaker 1: Has he himself sent threats via his computer, emails or
Speaker 1: texts that say, you know, anti Asian sentiments, those kind
Speaker 1: of things would be the kind of evidence that would
Speaker 1: help the police understand that this is part of the motivation.
Speaker 1: It's also true, you know, it is It is the
Speaker 1: case that if we look back before the last administration,
Speaker 1: we saw a spike in anti immigrant hate crimes, and
Speaker 1: that spike was associated with legislation in multiple states. Studies
Speaker 1: in California, as you remember, anti immigrant kind of legislation
Speaker 1: that denied them rights or privileges or try to keep
Speaker 1: immigrants out of community. And we saw that was followed
Speaker 1: by a spike in hate crimes in those states. And
Speaker 1: what happened is when we start to demonize a group
Speaker 1: like that, at that point, it was immigrants. At this point,
Speaker 1: because of the pandemic, it appears to be Asians and
Speaker 1: Asian Americans. You know, that emboldened some people out there
Speaker 1: to say, well, yeah, they don't deserve to be here. Well, yeah,
Speaker 1: if I hurt one of them, no one's going to care.
Speaker 1: And so that's the dynamic. And so that dynamic may
Speaker 1: have been part of this. In other words, this individual
Speaker 1: could have been emboldened to say he was always thinking
Speaker 1: about something to do to them, but now with the
Speaker 1: rhetoric of you know, the Asians associated with the pandemic,
Speaker 1: which is completely wrong, it emboldened him to say, Okay,
Speaker 1: well if I go out and act on this feeling,
Speaker 1: I have, nobody's going to care. What's your take? Do
Speaker 1: you think that the Atlanta shooting should be charged as
Speaker 1: hate crimes? Well, obviously it should be charged as murder first,
Speaker 1: but I also think that it would be very helpful
Speaker 1: if they had the evidence to charge it as a
Speaker 1: hate crime. And so they should be looking for, as
Speaker 1: we talked about before, what kinds of state this individuals
Speaker 1: made on social media, what kinds of chat rooms and
Speaker 1: websites he's visited, to see if there's a case that
Speaker 1: says he has articulated anti Asian bias and that that
Speaker 1: may have contributed to the murders that he committed. Should
Speaker 1: the bar be lowered for bringing hate crimes? Absolutely, we
Speaker 1: don't have many. There's five thousands in a year in
Speaker 1: the United States, so that's not a huge amount compared
Speaker 1: to all of the other crimes that are being reported.
Speaker 1: But to give you an example in Massachusetts, for a
Speaker 1: hate crime to be found against a woman, in otherwise
Speaker 1: the woman was the target of a hate crime, the
Speaker 1: person hated women, which may be the case in obviously
Speaker 1: the Atlantis situation. One has to show that the person
Speaker 1: committed the act against a woman, But then they have
Speaker 1: to show that they prior incidents where they had restraining
Speaker 1: orders by different women in their path. So the bar
Speaker 1: is so high to be able to get a anti
Speaker 1: female hate crime. You know, you have to find this
Speaker 1: case where this person has been a serial offender for
Speaker 1: women and the documentation of it. And so I think
Speaker 1: that yes, like I gave you the case with the crosses,
Speaker 1: we tend to look for the most egregious crimes as
Speaker 1: hate crimes and not some of the more everyday crimes
Speaker 1: that we see. There are also bias motivating. It's important
Speaker 1: to understand that people are incredibly vulnerable hate crime victims,
Speaker 1: and the reason for that is that you carry the
Speaker 1: cause of the victimization with you. And what I mean
Speaker 1: by that is, as a criminologist, I could tell you
Speaker 1: if your house was robbed, how to make it less
Speaker 1: likely that your house would be robbed again, and you
Speaker 1: can put in alarms, we could tell the police, We
Speaker 1: could do a lot of things. But if you're attacked
Speaker 1: because you're black, or somebody perceives you as Jewish or
Speaker 1: your Asian, what do you do to make yourself feel safer?
Speaker 1: Wherever you go? You still carry that characteristic with you.
Speaker 1: And so that's one of the reasons that hate crimes
Speaker 1: are different and they call for different kinds of responses.
Speaker 1: Thanks for being on the Bloomberg Law show Jack. That's
Speaker 1: Professor Jack McDevitt of the School of Criminology and Criminal
Speaker 1: Justice at Northeastern University and director of the Institute for
Speaker 1: Race and Justice. Supreme Court Justice has indicated Tuesday that
Speaker 1: an Appeals Court ruling could harm public safety on American
Speaker 1: Indian reservations, with several justice is raising concerns ranging from
Speaker 1: drunk drivers to serial killers. Joining me is Bloomberg Law
Speaker 1: reporter Jordan Ruben. Jordan tell us about the incident in
Speaker 1: the case, So, Joshua James Cooley was pulled over on
Speaker 1: the side of the road US Roots Well around one
Speaker 1: in the morning one night in February. And this road
Speaker 1: that he was pulled over to the side of runs
Speaker 1: through the Crow Reservation in Montana, and there was a
Speaker 1: Crow Highway officer who went over to check on the
Speaker 1: truck because it's an area that didn't get great phone reception,
Speaker 1: so it wasn't necessarily looking for criminal reasons, just to
Speaker 1: check to see what was going on. And there was
Speaker 1: a lengthy encounter. Then when the officer went to the car,
Speaker 1: Coolie actually had a young child with him as well
Speaker 1: as multiple guns. And it turns out the methamphetamine and
Speaker 1: Coolie wound up getting charged federally because as a non
Speaker 1: native person, the tribe didn't have jurisdiction over him. But
Speaker 1: even though he was being charged in federal court, Coolie
Speaker 1: said that because he was initially detained and searched by
Speaker 1: a tribal officer, that tribal officer didn't have jurisdiction, and
Speaker 1: so he moved to suppress the evidence on those grounds.
Speaker 1: And what did the Ninth Circuit rule? The Ninth Circuit
Speaker 1: approved the granting of the suppression motions. So the Ninth Circuit,
Speaker 1: like the federal district court, ruled in favor of Coolie.
Speaker 1: They said that the tribal officers jurisdiction is limited in
Speaker 1: the following way. They said that an officer can stop
Speaker 1: a person who's traveling on this public right away within
Speaker 1: the reservation to determine whether they're Indian and therefore whose
Speaker 1: jurisdiction they'd fall under, and if they're not, or if
Speaker 1: they're not able to determine this, then the officer can
Speaker 1: only detain the person to then turn them over to
Speaker 1: state or federal authorities if it's a parent or obvious
Speaker 1: that state or federal law is being violated. So in
Speaker 1: this instance, wasn't it apparent when he saw the guns
Speaker 1: that state law is being violated. Well, there's a question
Speaker 1: over at what point those laws would kick in, and
Speaker 1: so Coolly would say that by the time that they
Speaker 1: were deeper into this interaction, that the officer had already
Speaker 1: violated his jurisdiction because at the point where the officer
Speaker 1: determined that he is a non Indian, that should have
Speaker 1: ended the matter. And then the Crow officers should have
Speaker 1: called for back up at that point and not done
Speaker 1: anything further in terms of delving into the car and
Speaker 1: continuing the interaction. And so it's an additional question which
Speaker 1: came up during the argument in the case as to
Speaker 1: what counts as a parent or obvious. But the government
Speaker 1: is saying that this is a basically an additional, unnecessary
Speaker 1: standard that's grafted onto the usual reasonable suspicions standard that
Speaker 1: cops would need in normal roadside interactions. So the Justice
Speaker 1: Department is fighting the Ninth Circuit decision and with the
Speaker 1: backing of the tribes, yes not just the Crow tribe,
Speaker 1: but many other tribes and other similar interest groups as well,
Speaker 1: because it's a ruling that could have wide implication across
Speaker 1: the country. Is this a challenge to tribal sovereignty. I
Speaker 1: think that that's certainly one way to look at it,
Speaker 1: because the whole backdrop of these cases is stemming from
Speaker 1: this really long and pretty sordid history of tribes being
Speaker 1: dispossessed of their land, and they're all of these important
Speaker 1: questions of what jurisdiction they have left. And so it's
Speaker 1: against that backdrop that the federal government is saying. The
Speaker 1: tribes are saying too, that they have at the very
Speaker 1: least this limited authority to maintain some semblance of order
Speaker 1: on their reservations, and so they see it as a
Speaker 1: challenge to that. They see Cooley's argument and the Ninth
Speaker 1: Circuits argument as really challenged them at least being able
Speaker 1: to maintain this order on their reservations. So the geice's
Speaker 1: concerns seemed to run the gamut from drunk drivers to
Speaker 1: serial killers. Tell us about that, right, So this complicated
Speaker 1: setup where you can only do limited things in terms
Speaker 1: of determining someone's status, raises all these questions of what
Speaker 1: exactly an officers allowed to do and what they're supposed
Speaker 1: to do. Justice Thomas, for example, raised the question of
Speaker 1: what if the driver fits the description of a known
Speaker 1: serial killer, but they didn't commit any crimes on the
Speaker 1: reservation and they're non Indian under the Nine Circuits rule,
Speaker 1: would the officer then just have to let that person go?
Speaker 1: Questions like that where it raises the issue of what
Speaker 1: exactly officers are allowed to do and whether the Ninth
Speaker 1: Circuits rule is workable and safe. And a bunch of
Speaker 1: the justices, obviously along with the Justice Department, suggested that
Speaker 1: the status quo in the Ninth Circuit is not good
Speaker 1: and not safe, and that's what's leading them to challenge
Speaker 1: that ruling on appeal. So, Jordan, what was the best
Speaker 1: argument made by the defendants attorney? So in a lot
Speaker 1: of cases, there will be one side that's focusing on
Speaker 1: all of these negative consequences that can come out of
Speaker 1: parade of horribles. I think the the sense was looking
Speaker 1: to not really get into that and just say, look,
Speaker 1: this is more of just a straightforward matter of whether
Speaker 1: the tribe has this jurisdiction, and his arguments was that
Speaker 1: they don't, and this is the legal argument that he made,
Speaker 1: but it also could potentially go to the practical concern.
Speaker 1: He said that a lot of issues can be avoided
Speaker 1: by cross deputizing tribal officers with other jurisdictions than that way,
Speaker 1: they'd be able to act under the authority of these
Speaker 1: other jurisdictions. And the Justice Department in turn had responses
Speaker 1: to that and talking about why the government thinks that
Speaker 1: that's unworkable. But there certainly are arguments to be had
Speaker 1: on the other side. Just after the argument, it's not
Speaker 1: clear to me that they're going to carry the day here.
Speaker 1: And Chief Justice Roberts said that the Supreme Court has
Speaker 1: recognized that tribes retain some inherent authority. Did he explain
Speaker 1: what he meant by inherent authority? Well, that's an important
Speaker 1: point that really sets the whole backdrop here in what
Speaker 1: I mentioned before and talking about how, you know, just
Speaker 1: the fact of a reservation. We're talking about land that
Speaker 1: is still left that tribes have. And so the issue,
Speaker 1: and this is an issue that the government is putting forth,
Speaker 1: is that that's what gives them this jurisdiction, at least
Speaker 1: this limited instance temporarily before they turn a person over,
Speaker 1: is this inherent authority to act in this way. And
Speaker 1: so it's really an issue that kind of paints the
Speaker 1: whole backdrop here because even though the justices seemed sympathetic
Speaker 1: to the government's argument. There's still debates over where exactly
Speaker 1: this native authority comes from, and there are different aspects
Speaker 1: to that. And so while it does seem like the
Speaker 1: Court is sympathetic deciding with the government, it's not exactly
Speaker 1: clear on what grounds they're going to do that. Former
Speaker 1: federal prosecutor is appointed by both Democratic and Republican presidents,
Speaker 1: told the court in a statement that Indian country criminal
Speaker 1: jurisdiction is quote a confounding morass for tribal, federal and
Speaker 1: state authorities. After hearing these arguments and in studying this case,
Speaker 1: does that sound about right? I think so. And that's
Speaker 1: the point that I think Justice Kavanaugh latched onto during
Speaker 1: the argument where Justice Kavanaugh raised the point that and
Speaker 1: this was while the defendant, Cooley's lawyer, was arguing and saying, look,
Speaker 1: the government's argument might have some things to criticize about it,
Speaker 1: but Justice Kavanaugh was saying, there's something to be said
Speaker 1: for trying not to do further damage in a sense
Speaker 1: to this complicated morass and just trying to keep being
Speaker 1: simple here. And so there's no doubt, no matter which
Speaker 1: side of this year on that This is a complicated
Speaker 1: area of the law, and so hopefully at least one
Speaker 1: thing that the court can do here is maybe try
Speaker 1: and clear up just how all these different interlocking laws
Speaker 1: apply here. What was justice course? It just take in particular,
Speaker 1: since he was the justice who wrote the opinion in
Speaker 1: the Oklahoma case, that's right, he wrote the mc grant
Speaker 1: decision last year, and that was an incredibly important opinion
Speaker 1: for tribal sovereignty, which also arose in a criminal case.
Speaker 1: So at a very broad level, it does have some
Speaker 1: similarities with this case. It does seem like justice Course,
Speaker 1: which is inclined to side on the tribal side of things. Again,
Speaker 1: although in this case the issue is being raised by
Speaker 1: the federal government and that's the tribes who are as
Speaker 1: an amaricust supporting the government. He raised again this issue
Speaker 1: which I think tribal observers appreciated in talking about looking
Speaker 1: at it from the standpoint of what authority do the
Speaker 1: tribes have left? And starting from that standpoint, and so
Speaker 1: from the point of if it hasn't been taken away,
Speaker 1: then its authority that they still have. And that's a
Speaker 1: very important principle that Native American law practitioners looked to,
Speaker 1: and so they saw Justice Gorsuch's questions as good ones
Speaker 1: for the federal government and the tribe in this case.
Speaker 1: Just a general question, if a crime is committed on
Speaker 1: an Indian reservation by a non Indian, can that person
Speaker 1: be tried in the tribal courts? No, they can't, and
Speaker 1: that's based on prior Supreme Court precedent, which isn'n at
Speaker 1: issue here. But it's one thing that complicates matters. That's
Speaker 1: part of what goes to the jurisdiction argument that the
Speaker 1: officer in this case, the crow Chipe officer, didn't have
Speaker 1: jurisdiction even for this limited purpose. Let's turn to something
Speaker 1: else Supreme Court related, and that's the appeal in the
Speaker 1: case of the marathon bomber Joe Harris and Nayev, and
Speaker 1: the Supreme Court decided to take the appeal. What's the
Speaker 1: focus of the appeal. The focus of the appeal has
Speaker 1: to do with pre trial publicity, and the First Circuit
Speaker 1: Court of Appeals this past summer said that the trial
Speaker 1: judge in the case didn't do enough to probe jurors
Speaker 1: about it. And so obviously this was a hugely public
Speaker 1: case and a lot of media attention and the Appeals
Speaker 1: Court wounds up reversing the death sentences on those grounds,
Speaker 1: and this petition was pending for months. Does it seem
Speaker 1: odd that the Justice has decided to take the case
Speaker 1: even when the administration has changed and the position on
Speaker 1: the death penalty may change. Does it seems strange? Yes?
Speaker 1: And no. So the reason that you could argue that
Speaker 1: it's strange is because there is this new administration. Obviously,
Speaker 1: President Biden has said that he opposes the death penalty,
Speaker 1: and so you might think that the Court will be
Speaker 1: at least waiting to see whether the Justice Department now
Speaker 1: under him might withdraw the petition. But on the no
Speaker 1: side of it, I think, by looking at the way
Speaker 1: the calendar worked out here is that there was a conference,
Speaker 1: a whole conference at least a week that went by
Speaker 1: since the time that Merrick Garland was appointed Attorney General,
Speaker 1: And that was one important step that I thought maybe
Speaker 1: the Court was waiting on to see whether they would
Speaker 1: take the case or not. And between the time that
Speaker 1: Garland was appointed and the Court's decisions to grant the case,
Speaker 1: there was a couple of weeks that had gone by
Speaker 1: and there was no word from the Justice Department. So
Speaker 1: I think it it's very possible that the Court was
Speaker 1: waiting to see what the Justice Department did, and that's
Speaker 1: why the Court didn't do anything for all these months,
Speaker 1: and then perhaps said, look, this new administration, whatever it's
Speaker 1: going to do, it had the opportunity to change its position,
Speaker 1: and so we're going to grant the case. Now the
Speaker 1: administration could still change its position, but now it's going
Speaker 1: to have to do it in a slightly more awkward
Speaker 1: posture if it does. The administration has changed position in
Speaker 1: at least five times since Joe Biden became president, so
Speaker 1: I suppose it won't be so unusual for it to
Speaker 1: do it here, right, And so again that goes to
Speaker 1: the point of the Court knows that this administration knows
Speaker 1: how to change positions, and so it certainly had the
Speaker 1: opportunity to do so before the Court granted review in
Speaker 1: the Cernai of case. But for whatever reason, the Justice
Speaker 1: Department chose not to do anything, at least not yet.
Speaker 1: Thanks Jordan's that's Bloomberg Law reporter Jordan Ruben, and that's
Speaker 1: it for the edition of the Bloomberg Law Show. Remember
Speaker 1: you can always at the latest legal news on our
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Speaker 1: I'm June Grasso. Thanks so much for listening, and please
Speaker 1: turn into The Bloomberg Law Show every week and then
Speaker 1: at Chenpian Eastern right here on Bloomberg Radio