1 00:00:02,759 --> 00:00:07,000 Speaker 1: This is Bloomberg Law, with June Grossel from Bloomberg Radio. 2 00:00:08,720 --> 00:00:12,240 Speaker 2: Six year old Eton Pates was the first missing child 3 00:00:12,320 --> 00:00:16,640 Speaker 2: to appear on Milk Carton's. His disappearance in nineteen seventy 4 00:00:16,720 --> 00:00:21,360 Speaker 2: nine sparked a nationwide campaign to find missing children, but 5 00:00:21,520 --> 00:00:25,480 Speaker 2: Pates was never found and his case went unsolved for 6 00:00:25,480 --> 00:00:29,240 Speaker 2: more than a decade. It wasn't until twenty seventeen that 7 00:00:29,280 --> 00:00:33,919 Speaker 2: Pedro Hernandez was convicted of his murder and kidnapping and 8 00:00:34,040 --> 00:00:37,239 Speaker 2: sentenced to twenty five years to life in prison. 9 00:00:37,200 --> 00:00:38,800 Speaker 1: But the case didn't end there. 10 00:00:39,200 --> 00:00:43,200 Speaker 2: New York Capella courts affirmed his conviction, but last year 11 00:00:43,440 --> 00:00:48,000 Speaker 2: the Second Circuit Federal Appeals Court reversed and ordered a 12 00:00:48,040 --> 00:00:51,240 Speaker 2: new trial for Hernandez because of the way the trial 13 00:00:51,320 --> 00:00:55,120 Speaker 2: judge had answered a question from jurors. But today the 14 00:00:55,160 --> 00:00:59,760 Speaker 2: Supreme Court reversed the Second Circuit and reinstated the murder 15 00:00:59,760 --> 00:01:05,920 Speaker 2: can against Hernandez, finding federal courts shouldn't second guess state courts. 16 00:01:06,520 --> 00:01:10,120 Speaker 2: My guest is former Manhattan prosecutor and criminal defense attorney 17 00:01:10,120 --> 00:01:14,560 Speaker 2: Paul Callen of counsel at Adelman and Adelman. Paul tell 18 00:01:14,600 --> 00:01:18,600 Speaker 2: us about the disappearance of Eton Pates, the six year 19 00:01:18,640 --> 00:01:22,039 Speaker 2: old was kidnapped off the streets of New York in 20 00:01:22,160 --> 00:01:26,080 Speaker 2: nineteen seventy nine, and he became the poster child for 21 00:01:26,240 --> 00:01:27,320 Speaker 2: missing children. 22 00:01:27,520 --> 00:01:30,640 Speaker 3: I think to this day you're absolutely right about that. 23 00:01:30,720 --> 00:01:33,400 Speaker 3: As a matter of fact, I think this case has 24 00:01:33,520 --> 00:01:37,920 Speaker 3: altered child rearing in the United States permanently. You know, 25 00:01:37,959 --> 00:01:40,040 Speaker 3: it used to be mom would send kids out the 26 00:01:40,080 --> 00:01:42,400 Speaker 3: back door and say go play, come back for supper. 27 00:01:42,760 --> 00:01:45,800 Speaker 3: Now the parents follow them around, follow them to the 28 00:01:45,800 --> 00:01:48,040 Speaker 3: bus stop. They're all terrified the kids are going to 29 00:01:48,040 --> 00:01:51,520 Speaker 3: be kidnapped. And it all started with Eton Pates, who 30 00:01:51,600 --> 00:01:54,920 Speaker 3: was going to catch a bus to his school in 31 00:01:55,040 --> 00:02:00,120 Speaker 3: Soho in New York, and he was kidnapped and apparently murdered. 32 00:02:00,520 --> 00:02:03,840 Speaker 3: And only recently have we had a final resolution of 33 00:02:03,880 --> 00:02:06,840 Speaker 3: the case in terms of who committed the murder. An 34 00:02:06,840 --> 00:02:11,480 Speaker 3: individual named Hernandez, whose conviction was now reaffirmed by the 35 00:02:11,520 --> 00:02:12,240 Speaker 3: Supreme Court. 36 00:02:12,440 --> 00:02:14,920 Speaker 2: Tell us about the confession, because there were some troubling 37 00:02:14,919 --> 00:02:16,720 Speaker 2: things about the confession. 38 00:02:16,639 --> 00:02:20,120 Speaker 3: Yes there were. His brother in law reported to the 39 00:02:20,160 --> 00:02:25,120 Speaker 3: police that Hernandez had confessed to the murder of Eton Pates. 40 00:02:25,120 --> 00:02:28,400 Speaker 3: And of course Eton pates murder has been a very, 41 00:02:28,520 --> 00:02:31,520 Speaker 3: very famous case throughout the United States ever since it 42 00:02:31,600 --> 00:02:34,760 Speaker 3: happened back in nineteen seventy nine, long time ago. In 43 00:02:34,800 --> 00:02:37,280 Speaker 3: any event, the brother in law reports to the police 44 00:02:37,480 --> 00:02:42,720 Speaker 3: that his quote low IQ relative has confessed to the murder, 45 00:02:43,160 --> 00:02:46,560 Speaker 3: and Camden County, New Jersey, police pick him up and 46 00:02:47,040 --> 00:02:49,919 Speaker 3: they start questioning him, but they don't give him as 47 00:02:49,960 --> 00:02:53,520 Speaker 3: Miranda warnings. He confesses that he was working in a 48 00:02:53,520 --> 00:02:57,920 Speaker 3: bodega in Soho when Eton Pates came in to buy 49 00:02:57,960 --> 00:03:00,560 Speaker 3: a drink as he was on his way to the stop, 50 00:03:00,960 --> 00:03:04,960 Speaker 3: and that he murdered Eton Pates and disposed of the body, 51 00:03:05,280 --> 00:03:09,280 Speaker 3: presumably throwing the body into a dumpster behind the deli. 52 00:03:09,720 --> 00:03:13,000 Speaker 3: Full confession to the murder. The police, then, who have 53 00:03:13,160 --> 00:03:16,840 Speaker 3: not given him his Miranda warnings, now say we should 54 00:03:16,840 --> 00:03:20,200 Speaker 3: give him the Miranda warnings and videotape this confession. And 55 00:03:20,240 --> 00:03:23,040 Speaker 3: that's exactly what they do. They give him Miranda warnings, 56 00:03:23,360 --> 00:03:27,160 Speaker 3: videotape the confession, and then they call the District Attorney's 57 00:03:27,240 --> 00:03:29,919 Speaker 3: office in New York and say, you better come out here. 58 00:03:29,960 --> 00:03:32,960 Speaker 3: We have somebody confessing to the murder of Eton Pates. Now, 59 00:03:33,000 --> 00:03:34,960 Speaker 3: this was a case that had gone cold for a 60 00:03:35,000 --> 00:03:39,280 Speaker 3: long time, so obviously the Manhattan DIA's Office was very 61 00:03:39,280 --> 00:03:42,720 Speaker 3: interested in that. Apparently, while all of this is going on, 62 00:03:43,080 --> 00:03:47,160 Speaker 3: Hernandez also talks to his wife and his daughter Rosemary 63 00:03:47,200 --> 00:03:50,240 Speaker 3: and Becky, and he confesses to both of them that 64 00:03:50,360 --> 00:03:54,200 Speaker 3: he's in fact the person who killed Eton Pates. He's 65 00:03:54,200 --> 00:03:57,480 Speaker 3: then picked up by the Manhattan DIA's Office taken back 66 00:03:57,520 --> 00:04:01,320 Speaker 3: into New York, where he confesses again to the murder, 67 00:04:01,320 --> 00:04:03,960 Speaker 3: this time again on videotape, so we now have two 68 00:04:04,040 --> 00:04:09,040 Speaker 3: videotaped confessions. Later on, during pre trial proceedings, he meets 69 00:04:09,040 --> 00:04:12,960 Speaker 3: with a psychiatrist. He confesses to the psychiatrist that he's 70 00:04:13,000 --> 00:04:16,520 Speaker 3: the murderer, and while giving that confession, he also tells 71 00:04:16,560 --> 00:04:19,840 Speaker 3: the psychiatrist that he admitted this to a prayer group 72 00:04:20,120 --> 00:04:22,719 Speaker 3: at one point over the last twenty years. So by 73 00:04:22,760 --> 00:04:27,279 Speaker 3: my count, I think he's confessed now seven times to 74 00:04:27,360 --> 00:04:30,719 Speaker 3: the murder. All right, So the case goes to trial 75 00:04:31,000 --> 00:04:33,920 Speaker 3: in New York. The first trial, by the way, ends 76 00:04:33,960 --> 00:04:38,800 Speaker 3: in a hung jury. He's retried, and the second jury 77 00:04:38,880 --> 00:04:42,440 Speaker 3: comes back with a jury question. And the jury question 78 00:04:42,600 --> 00:04:47,839 Speaker 3: is this, if he was not given his Miranda warnings 79 00:04:47,880 --> 00:04:54,080 Speaker 3: properly and therefore did not voluntarily confess, is it okay 80 00:04:54,120 --> 00:04:57,520 Speaker 3: for us to consider the other confessions that occurred after this. 81 00:04:57,920 --> 00:05:00,280 Speaker 3: In substance, that was the question that was asked by 82 00:05:00,279 --> 00:05:03,120 Speaker 3: the jury. The way they phrased it was, the jury said, 83 00:05:03,640 --> 00:05:08,640 Speaker 3: do we have to disregard the subsequent confessions if the 84 00:05:08,800 --> 00:05:15,560 Speaker 3: first confession was not voluntary? The judge says one word, no, okay, no, 85 00:05:15,760 --> 00:05:21,400 Speaker 3: you don't have to disregard the subsequent confessions. And after that, 86 00:05:21,440 --> 00:05:25,479 Speaker 3: the jury deliberates for another week and they find Hernandez 87 00:05:25,560 --> 00:05:29,080 Speaker 3: guilty of the kidnapping and murder of Eton Pates. So 88 00:05:29,440 --> 00:05:32,520 Speaker 3: that's the story in a nutshell up until we get 89 00:05:32,800 --> 00:05:34,719 Speaker 3: to subsequent court decisions. 90 00:05:34,920 --> 00:05:36,840 Speaker 2: And I want to note it was a five month 91 00:05:36,920 --> 00:05:40,359 Speaker 2: long trial with sixty six witnesses, so it wasn't just 92 00:05:40,480 --> 00:05:43,960 Speaker 2: based on that confession. So through the state, the state 93 00:05:44,000 --> 00:05:48,920 Speaker 2: appellate courts affirmed the conviction, and then the federal appellate Court, 94 00:05:49,000 --> 00:05:52,800 Speaker 2: the Second Circuit, in one hundred page opinion last year, 95 00:05:52,880 --> 00:05:55,960 Speaker 2: reversed and ordered that he get a new trial. So 96 00:05:56,200 --> 00:05:58,200 Speaker 2: what was their reversal based on. 97 00:05:58,880 --> 00:06:03,680 Speaker 3: The decision was based on the judge's instructions to the 98 00:06:03,839 --> 00:06:07,000 Speaker 3: jury when they came back with a question, that question 99 00:06:07,080 --> 00:06:09,599 Speaker 3: that I just repeated, do we have to disregard the 100 00:06:09,640 --> 00:06:13,839 Speaker 3: subsequent confessions, where the judge just said no. That was 101 00:06:13,880 --> 00:06:17,360 Speaker 3: the focus. It was a petition for habeas corpus, which 102 00:06:17,839 --> 00:06:20,559 Speaker 3: you know is an elaborate procedure that happens in most 103 00:06:20,680 --> 00:06:23,919 Speaker 3: serious criminal cases where an appeal has gone through the 104 00:06:23,960 --> 00:06:27,640 Speaker 3: whole state system and the defendant is still in jailed. 105 00:06:27,680 --> 00:06:30,320 Speaker 3: He keeps losing, and then he finally goes to federal 106 00:06:30,360 --> 00:06:34,359 Speaker 3: court and says, my constitutional rights were violated. You the 107 00:06:34,360 --> 00:06:37,080 Speaker 3: federal courts should order my release. And it's called a 108 00:06:37,080 --> 00:06:40,720 Speaker 3: habeas corpus action. And there's been a law that's been 109 00:06:40,760 --> 00:06:45,240 Speaker 3: passed making it very difficult to bring a habeas action 110 00:06:45,400 --> 00:06:47,880 Speaker 3: because what was happening was every criminal case the United 111 00:06:47,920 --> 00:06:50,720 Speaker 3: States is winding up in federal court, and the Supreme 112 00:06:50,800 --> 00:06:54,440 Speaker 3: Court now in this case, makes specific reference to that 113 00:06:54,680 --> 00:06:59,000 Speaker 3: particular law. It's called the Adeeper law that places limitations 114 00:06:59,040 --> 00:07:03,440 Speaker 3: on habeas corpus. So when the Second Circuit, which is 115 00:07:03,440 --> 00:07:05,839 Speaker 3: a federal court, and our bear in mind, this went 116 00:07:05,880 --> 00:07:08,800 Speaker 3: to the Appellate Division in New York, the state court, 117 00:07:08,880 --> 00:07:10,600 Speaker 3: they looked at it and they said, you know something, 118 00:07:10,920 --> 00:07:14,160 Speaker 3: it's all right. The question of whether a confession is 119 00:07:14,280 --> 00:07:17,280 Speaker 3: voluntary or involuntariory, by the way, is generally decided by 120 00:07:17,320 --> 00:07:20,440 Speaker 3: a judge. It's not usually decided by a jury. And 121 00:07:20,520 --> 00:07:24,120 Speaker 3: so the Appellate Division said, under New York law, the 122 00:07:24,200 --> 00:07:28,960 Speaker 3: way this confession was evaluated was perfectly proper, okay. So 123 00:07:29,040 --> 00:07:31,560 Speaker 3: then they go went to federal court with this, and 124 00:07:31,720 --> 00:07:34,760 Speaker 3: the second circuit looks at it, which is the appellate 125 00:07:34,800 --> 00:07:38,200 Speaker 3: court on the federal side, after the district court looks 126 00:07:38,240 --> 00:07:41,520 Speaker 3: at it first, and they say, well, we think there's 127 00:07:41,560 --> 00:07:46,120 Speaker 3: a problem here. The judge should have explained in more detail, 128 00:07:46,240 --> 00:07:49,720 Speaker 3: other than saying no to the jury, that there could 129 00:07:49,800 --> 00:07:52,960 Speaker 3: be a problem with the confession, that there was insufficient 130 00:07:53,040 --> 00:07:58,840 Speaker 3: what we call attenuation between the initial confession and the 131 00:07:58,880 --> 00:08:02,880 Speaker 3: subsequent confession, which also gets us back to another rule, 132 00:08:03,280 --> 00:08:07,720 Speaker 3: which is the Mitchell versus Siebert rule that came about 133 00:08:08,000 --> 00:08:12,160 Speaker 3: when the cops were misusing Miranda warnings, and what they 134 00:08:12,200 --> 00:08:15,040 Speaker 3: would do is they would bring you into the station, 135 00:08:15,720 --> 00:08:18,600 Speaker 3: get you to confess to a crime, and after you 136 00:08:18,680 --> 00:08:22,440 Speaker 3: gave the complete detailed confession, they'd walk out of the 137 00:08:22,520 --> 00:08:24,280 Speaker 3: room and then they'd come back in and give you 138 00:08:24,280 --> 00:08:27,560 Speaker 3: your Miranda warnings and say, by the way, that confession. 139 00:08:27,920 --> 00:08:30,200 Speaker 3: Can you repeat that police for the record, and now 140 00:08:30,200 --> 00:08:33,559 Speaker 3: they videotape your confession all right. Now, when the federal 141 00:08:33,640 --> 00:08:36,880 Speaker 3: courts looked at this, they said, this is completely improper. 142 00:08:37,040 --> 00:08:40,120 Speaker 3: It's an attempt to get around the Miranda warnings. And 143 00:08:40,200 --> 00:08:44,119 Speaker 3: once somebody has been possibly coerced into giving a confession 144 00:08:44,520 --> 00:08:47,560 Speaker 3: because they haven't heard the Miranda warnings, of course they're 145 00:08:47,559 --> 00:08:50,760 Speaker 3: going to repeat the confession. So this Missouri Versus Sebert 146 00:08:50,760 --> 00:08:55,599 Speaker 3: case said, basically, this is an improper method of administering 147 00:08:55,600 --> 00:08:58,280 Speaker 3: the Miranda warnings and if it's done deliberately by the police, 148 00:08:58,679 --> 00:09:01,480 Speaker 3: the confession has to be thrown out. So this comes 149 00:09:01,520 --> 00:09:04,760 Speaker 3: up now in the Hernandez case, because does that violate 150 00:09:04,840 --> 00:09:09,320 Speaker 3: the Missouri Versus Sebert rule. Well, the court in New 151 00:09:09,400 --> 00:09:12,640 Speaker 3: York said no, there was no violation of that in 152 00:09:12,679 --> 00:09:15,440 Speaker 3: our opinion. But when it goes over to the federal court, 153 00:09:15,520 --> 00:09:18,800 Speaker 3: the federal court says, yes, there was a violation of that. 154 00:09:19,320 --> 00:09:23,560 Speaker 2: So the Second Circuit reversed the conviction and ordered a 155 00:09:23,559 --> 00:09:27,760 Speaker 2: new trial for Hernandez. But the Manhattan District Attorney's office 156 00:09:28,080 --> 00:09:30,880 Speaker 2: took that decision to the highest court. 157 00:09:31,440 --> 00:09:34,640 Speaker 3: The state, and this is very unusual. Now goes to 158 00:09:34,679 --> 00:09:37,600 Speaker 3: the Supreme Court to try to get a conviction reinstated. 159 00:09:37,640 --> 00:09:40,000 Speaker 3: You know, usually you see a defendant has been convicted 160 00:09:40,400 --> 00:09:42,679 Speaker 3: going to the Supreme Court to get his case thrown out. 161 00:09:42,760 --> 00:09:45,600 Speaker 3: This is the opposite. The prosecutor's looking for justice now. 162 00:09:45,880 --> 00:09:48,360 Speaker 3: So now when they go to the Supreme Court, the 163 00:09:48,360 --> 00:09:52,560 Speaker 3: Supreme Court says, no, there was no violation here because 164 00:09:52,840 --> 00:09:57,040 Speaker 3: the state looked at it under state law. The administration 165 00:09:57,320 --> 00:10:01,760 Speaker 3: of miranda warnings was done proper. There was proper attenuation, 166 00:10:02,000 --> 00:10:04,920 Speaker 3: and that's a question for the judge, not the jury. 167 00:10:05,320 --> 00:10:09,680 Speaker 3: The Seber case never said anything about jury instruction. So 168 00:10:10,400 --> 00:10:13,400 Speaker 3: this is an overreach by the Second Circuit and there 169 00:10:13,440 --> 00:10:15,880 Speaker 3: was no right for a habeas corpus to be brought here. 170 00:10:15,880 --> 00:10:17,439 Speaker 3: So we're reinstating the conviction. 171 00:10:18,000 --> 00:10:21,640 Speaker 2: Paul, Did the Supreme Court reverse because the Second Circuit 172 00:10:22,080 --> 00:10:26,360 Speaker 2: didn't properly follow federal law or because state law should 173 00:10:26,360 --> 00:10:27,160 Speaker 2: have applied here. 174 00:10:27,800 --> 00:10:31,440 Speaker 3: Well, it's a complex question because they're saying that in 175 00:10:31,480 --> 00:10:37,800 Speaker 3: this situation, the state had the right to evaluate whether 176 00:10:38,160 --> 00:10:42,800 Speaker 3: there was a proper attenuation of the confession. In other words, 177 00:10:42,800 --> 00:10:48,160 Speaker 3: whether the secondary administration of miranda warnings by the Manhattan 178 00:10:48,280 --> 00:10:52,920 Speaker 3: DA and by the police violated New York law, and 179 00:10:53,200 --> 00:10:56,199 Speaker 3: New York said, no, that doesn't violate our law. And 180 00:10:56,679 --> 00:11:00,120 Speaker 3: in New York a jury can sometimes decide whether a 181 00:11:00,200 --> 00:11:04,520 Speaker 3: confession is voluntary or not. Under federal law, that's generally 182 00:11:04,679 --> 00:11:09,240 Speaker 3: a judge determination that's been made. So the Supreme Court, 183 00:11:09,679 --> 00:11:13,920 Speaker 3: looking at this overall, said, well, we've looked at this, 184 00:11:14,240 --> 00:11:18,400 Speaker 3: and there's no violation of federal law as it exists. 185 00:11:18,960 --> 00:11:22,080 Speaker 3: And if there was a violation of state law, the 186 00:11:22,160 --> 00:11:25,440 Speaker 3: state has already made a decision here that there was 187 00:11:25,520 --> 00:11:28,199 Speaker 3: no violation of New York state law. So the federal 188 00:11:28,280 --> 00:11:32,040 Speaker 3: government has no business interfering in how the State of 189 00:11:32,080 --> 00:11:35,800 Speaker 3: New York interprets the administration of the Miranda warnings. And 190 00:11:36,000 --> 00:11:39,960 Speaker 3: the confession is a voluntary confession. So it's kind of 191 00:11:40,040 --> 00:11:43,360 Speaker 3: a question of how you evaluate due process under state 192 00:11:43,480 --> 00:11:47,120 Speaker 3: and federal law on whether there's a conflict between the 193 00:11:47,240 --> 00:11:50,480 Speaker 3: sovereign entities. And here the Supreme Court was saying, you know, 194 00:11:50,520 --> 00:11:52,440 Speaker 3: there are certain things that we leave to the state, 195 00:11:52,960 --> 00:11:56,880 Speaker 3: and the federal Habeas Corpus Act says we should leave 196 00:11:56,960 --> 00:12:02,320 Speaker 3: most of those things alone unless it's absolutely egregious violation 197 00:12:02,720 --> 00:12:06,360 Speaker 3: of somebody's constitutional rights. And let's step back and look 198 00:12:06,400 --> 00:12:10,040 Speaker 3: at this case. Tune. The guy confessed seven times to 199 00:12:10,120 --> 00:12:13,000 Speaker 3: the murder, all right, So I think the Supreme Court 200 00:12:13,040 --> 00:12:16,120 Speaker 3: was looking at it saying, well, you know, we're not 201 00:12:16,240 --> 00:12:18,240 Speaker 3: worried about whether we have the right guy or not. 202 00:12:18,480 --> 00:12:22,120 Speaker 3: We're just looking at some technicalities here. And the New 203 00:12:22,200 --> 00:12:25,480 Speaker 3: York courts looked at those technicalities and said, there's no 204 00:12:25,600 --> 00:12:28,280 Speaker 3: violation of New York law here, so we're not going 205 00:12:28,320 --> 00:12:31,280 Speaker 3: to set it aside because there's no violation of federal law. 206 00:12:31,679 --> 00:12:34,280 Speaker 2: I mean, the Second Circuit basically wanted the judge to 207 00:12:34,320 --> 00:12:38,920 Speaker 2: start explaining to the jury a concurring opinion by Justice 208 00:12:39,000 --> 00:12:41,480 Speaker 2: Kennedy in a case from more than twenty years ago. 209 00:12:41,720 --> 00:12:44,760 Speaker 2: I mean, it just seemed ridiculous to put in legal terms. 210 00:12:44,960 --> 00:12:49,400 Speaker 3: That's exactly what the Second Circuit said. And by the way, 211 00:12:49,480 --> 00:12:52,359 Speaker 3: people should know this is what's called a per curiam 212 00:12:52,600 --> 00:12:56,040 Speaker 3: decision by the Supreme Court, which means a decision by 213 00:12:56,080 --> 00:12:58,800 Speaker 3: the court. We don't know who authored this opinion, but 214 00:12:58,920 --> 00:13:02,280 Speaker 3: we do know that the three liberal justices on the 215 00:13:02,280 --> 00:13:04,920 Speaker 3: Court voted against. So it was a six' to three 216 00:13:04,920 --> 00:13:05,720 Speaker 3: decision by the. 217 00:13:05,760 --> 00:13:09,760 Speaker 2: Court nothing from the liberals about why they were dissenting on. 218 00:13:09,800 --> 00:13:14,120 Speaker 3: This very, unusual because you, know these procurium decisions are 219 00:13:14,160 --> 00:13:17,040 Speaker 3: usually very very, short but this WAS i think an eleven, page, 220 00:13:17,120 --> 00:13:20,560 Speaker 3: yeah very very detailed decision by the. Court and you 221 00:13:20,600 --> 00:13:24,400 Speaker 3: would think that the three justices who were dissenting would 222 00:13:24,480 --> 00:13:27,240 Speaker 3: have weighed in as to why they disagreed with the 223 00:13:27,280 --> 00:13:29,560 Speaker 3: other six members of the. Court but, no they said. 224 00:13:29,559 --> 00:13:32,200 Speaker 3: Nothing they just said we. Dissent SO i don't know 225 00:13:32,240 --> 00:13:34,680 Speaker 3: what the basis of their descent would, be and we'll 226 00:13:34,679 --> 00:13:38,319 Speaker 3: never know because this case is for all practical purposes. 227 00:13:38,360 --> 00:13:40,800 Speaker 3: OVER i, mean it'll go back to The State court 228 00:13:40,840 --> 00:13:43,839 Speaker 3: and the sentence will be reimposed and that'll be the 229 00:13:43,920 --> 00:13:44,480 Speaker 3: end of it. 230 00:13:44,559 --> 00:13:48,679 Speaker 2: For all practical. Purposes if The Manhattan District attorney's officers 231 00:13:48,679 --> 00:13:51,360 Speaker 2: had to retry this, CASE i, mean would they have 232 00:13:51,440 --> 00:13:54,640 Speaker 2: been able to put together a case after all these. 233 00:13:54,800 --> 00:13:58,360 Speaker 3: Years, well that was one of the things they raised 234 00:13:58,400 --> 00:14:02,840 Speaker 3: in their. Briefs it's patently unfair to try to force 235 00:14:02,960 --> 00:14:06,440 Speaker 3: us to retry a case as old as this case 236 00:14:06,840 --> 00:14:08,880 Speaker 3: and to try to put it all. Together SO i 237 00:14:08,880 --> 00:14:10,640 Speaker 3: think they would have had. Trouble but of, course on 238 00:14:10,679 --> 00:14:14,600 Speaker 3: the other, hand the case primarily depends upon these, confessions 239 00:14:14,920 --> 00:14:19,080 Speaker 3: and it's easy enough to put the confessions into, evidence you, 240 00:14:19,120 --> 00:14:22,760 Speaker 3: know through the psychiatrist and through The camden police and 241 00:14:22,800 --> 00:14:26,200 Speaker 3: through The MANHATTAN. Das, now if he's going to offer 242 00:14:26,240 --> 00:14:29,440 Speaker 3: an insanity, defense, yeah that could take a lot of 243 00:14:29,480 --> 00:14:31,880 Speaker 3: time to put In and you, know we don't know 244 00:14:31,920 --> 00:14:34,120 Speaker 3: what would happen on a. RETRIAL i, mean the defense 245 00:14:34,160 --> 00:14:36,600 Speaker 3: would reassess and figure out a new way to approach the, 246 00:14:36,680 --> 00:14:39,720 Speaker 3: case to try to put an effective defense in. Play 247 00:14:39,880 --> 00:14:42,680 Speaker 3: AND i will say, this defense attorneys were, very very 248 00:14:42,720 --> 00:14:46,040 Speaker 3: adamant in saying he's innocent and this is a really 249 00:14:46,160 --> 00:14:48,040 Speaker 3: terrible decision to reinstate this. 250 00:14:48,160 --> 00:14:53,040 Speaker 2: Conviction, WELL i Remember Eton pates's parents were very unhappy 251 00:14:53,200 --> 00:14:57,280 Speaker 2: when the Second circuit reversed the. Conviction as you might, 252 00:14:57,360 --> 00:14:59,480 Speaker 2: expect it's been great having you on, Again. 253 00:14:59,520 --> 00:15:00,160 Speaker 1: Paul thanks so. 254 00:15:00,280 --> 00:15:04,360 Speaker 2: Much that's Former manhattan prosecutor and criminal defense Attorney Paul, 255 00:15:04,440 --> 00:15:08,840 Speaker 2: callen turning now to upcoming decisions at The Supreme. Court 256 00:15:09,200 --> 00:15:11,920 Speaker 2: tomorrow's starting at ten. Am The court is going to 257 00:15:11,960 --> 00:15:16,440 Speaker 2: announce decisions in cases that have been. Argued the justices 258 00:15:16,520 --> 00:15:20,600 Speaker 2: have seventeen cases left to decide before the term, ends 259 00:15:20,880 --> 00:15:23,840 Speaker 2: which is usually at the end Of. June seven are 260 00:15:23,920 --> 00:15:27,840 Speaker 2: high profile cases and four of them Involve President trump 261 00:15:28,200 --> 00:15:31,840 Speaker 2: joining me is an expert in constitutional, Law Harold, krant 262 00:15:31,840 --> 00:15:35,400 Speaker 2: a professor at The Chicago Kent college Of. Law how 263 00:15:35,440 --> 00:15:40,040 Speaker 2: so many cases left in the last about week and 264 00:15:40,120 --> 00:15:42,920 Speaker 2: a half of the, term among them the most high 265 00:15:43,000 --> 00:15:47,560 Speaker 2: profile cases of the, term including for, example the birthright 266 00:15:47,640 --> 00:15:51,840 Speaker 2: citizenship case Or trump's effort to fire a federal reserve. 267 00:15:51,880 --> 00:15:56,000 Speaker 2: GOVERNOR i always hear, that, well these are complicated, cases 268 00:15:56,080 --> 00:15:59,560 Speaker 2: and it takes, longer and there are more, concurrences and. 269 00:16:00,720 --> 00:16:02,720 Speaker 1: But some of these cases date back To. 270 00:16:02,880 --> 00:16:09,080 Speaker 2: December so my question, is are they waiting to issue 271 00:16:09,080 --> 00:16:13,200 Speaker 2: all these important decisions together to try to diffuse the 272 00:16:13,280 --> 00:16:14,720 Speaker 2: impact of any one. 273 00:16:14,800 --> 00:16:16,800 Speaker 1: DECISION i think that's. 274 00:16:17,240 --> 00:16:20,440 Speaker 4: PLAUSIBLE i, mean, obviously the springboard does tend to hold 275 00:16:20,480 --> 00:16:23,760 Speaker 4: cases of great national importance towards the end so they 276 00:16:23,800 --> 00:16:26,640 Speaker 4: can make their way into the. Night so that has 277 00:16:26,760 --> 00:16:30,240 Speaker 4: been a. Tendency but, again if they want to mute 278 00:16:30,560 --> 00:16:35,000 Speaker 4: some kind of reaction to their decisions being both Rogue 279 00:16:35,000 --> 00:16:39,280 Speaker 4: trump administration Anti trump, administration bothering them together is not 280 00:16:39,360 --> 00:16:42,200 Speaker 4: a bad. Strategy AND i think the way these cases 281 00:16:42,280 --> 00:16:44,320 Speaker 4: lay out is very likely that don't be a. 282 00:16:44,360 --> 00:16:47,560 Speaker 2: Split, Yeah so let's start with some of the most 283 00:16:47,640 --> 00:16:52,560 Speaker 2: high profile birthright. Citizenship President trump's bid to roll back 284 00:16:52,720 --> 00:16:57,520 Speaker 2: automatic birthright citizenship to babies with at least one parent 285 00:16:57,520 --> 00:16:59,600 Speaker 2: who's A us citizen Or green. 286 00:16:59,680 --> 00:17:03,960 Speaker 4: Card, well the issue is there is The Fourteenth amendment 287 00:17:04,240 --> 00:17:08,199 Speaker 4: suggests that there is ciszenship to anybody born within the 288 00:17:08,280 --> 00:17:10,280 Speaker 4: jurisdiction of The United, States and the question is what 289 00:17:10,320 --> 00:17:13,679 Speaker 4: does jurisdiction. Mean but in terms of the, history in 290 00:17:13,760 --> 00:17:16,919 Speaker 4: terms of helping interpreted The Fourteenth, amendment and in terms 291 00:17:16,920 --> 00:17:20,679 Speaker 4: of a congressional statute that uses similar, language and The 292 00:17:20,720 --> 00:17:24,359 Speaker 4: Supreme court precedent in The Long King arc decision of 293 00:17:24,520 --> 00:17:27,479 Speaker 4: one hundred years ago or, so they all point to 294 00:17:27,520 --> 00:17:30,040 Speaker 4: the direction that The trump administration is going to, lose 295 00:17:30,400 --> 00:17:33,680 Speaker 4: and that we believe that anybody born within the territory 296 00:17:33,720 --> 00:17:37,200 Speaker 4: of The United, states with certain defined exceptions such as 297 00:17:37,240 --> 00:17:41,560 Speaker 4: The indian, tribes are. Citizens AND i can't believe The 298 00:17:41,600 --> 00:17:43,439 Speaker 4: Supreme court is great from that in this. 299 00:17:43,560 --> 00:17:46,520 Speaker 2: Case, well as you, say there's A Supreme court case 300 00:17:46,560 --> 00:17:49,720 Speaker 2: directly on. Point all the federal courts who ruled on 301 00:17:49,880 --> 00:17:54,360 Speaker 2: this found that the executive order runs against the citizenship 302 00:17:54,400 --> 00:17:57,880 Speaker 2: clause as well as federal immigration. Law Supreme court, precedent 303 00:17:58,440 --> 00:18:01,440 Speaker 2: and when this case was, argued to seem like justices 304 00:18:01,640 --> 00:18:06,760 Speaker 2: across the ideological spectrum were dubious About trump's. Order so 305 00:18:06,800 --> 00:18:08,160 Speaker 2: why didn't this decision come out? 306 00:18:08,200 --> 00:18:08,520 Speaker 1: Fast? 307 00:18:08,560 --> 00:18:13,400 Speaker 2: Then are we expecting some kind of narrowing or limited. 308 00:18:13,440 --> 00:18:16,960 Speaker 5: INTERPRETATION i can't imagine it in this. 309 00:18:17,040 --> 00:18:19,040 Speaker 4: Case so many other, CASES i can imagine a very 310 00:18:19,080 --> 00:18:22,439 Speaker 4: limiting perspective that the court will. Take but this seems 311 00:18:22,480 --> 00:18:25,000 Speaker 4: to be teed up as a Big trump. Loss AND 312 00:18:25,359 --> 00:18:28,280 Speaker 4: i could be deceiving, myself but it seems like that's 313 00:18:28,320 --> 00:18:30,600 Speaker 4: going to. Happen and, again as you pointed, out maybe 314 00:18:30,600 --> 00:18:34,080 Speaker 4: the court decides it'll try to temper the, sting if you, 315 00:18:34,160 --> 00:18:37,840 Speaker 4: will to The trump administration by combining this case with 316 00:18:37,920 --> 00:18:40,479 Speaker 4: the one in which it looks more favorably upon What 317 00:18:40,520 --> 00:18:41,320 Speaker 4: President trump was. 318 00:18:41,320 --> 00:18:44,520 Speaker 2: Done, Okay so now another one that appears from the oral. 319 00:18:44,600 --> 00:18:48,000 Speaker 2: Arguments we knew the answer To trump's effort to Fire 320 00:18:48,119 --> 00:18:53,880 Speaker 2: Federal Reserve Governor Lisa cook over unproven mortgage fraud. Allegations 321 00:18:54,280 --> 00:18:57,480 Speaker 2: so again oral, arguments it seemed like the justices, were you, 322 00:18:57,480 --> 00:19:01,159 Speaker 2: know of one mind that he couldn't. Do tell us 323 00:19:01,160 --> 00:19:03,520 Speaker 2: about the constitutional issue, Here. 324 00:19:03,960 --> 00:19:07,919 Speaker 4: Well the constitutional issue is really two Full the first 325 00:19:08,200 --> 00:19:11,359 Speaker 4: is if the president does not have the right to 326 00:19:11,480 --> 00:19:15,960 Speaker 4: Remove Lisa kokuho's a federalizer, governor oft will then he 327 00:19:16,040 --> 00:19:18,760 Speaker 4: has to find. Cause and The Supreme court has never 328 00:19:18,880 --> 00:19:22,720 Speaker 4: defined what cause. Is and the cause in this case 329 00:19:23,080 --> 00:19:27,199 Speaker 4: was the allegation of a mortgage fraud from seventy eight 330 00:19:27,320 --> 00:19:30,639 Speaker 4: years ago something like, that Before Alisa cooke was a. 331 00:19:30,640 --> 00:19:35,159 Speaker 4: Governor so there's really two three parts of this in 332 00:19:35,160 --> 00:19:37,400 Speaker 4: which The court is not going to tackle all. Three 333 00:19:37,520 --> 00:19:40,640 Speaker 4: one is what does cause? Mean we don't. Know does 334 00:19:40,720 --> 00:19:45,000 Speaker 4: cause extend to conduct pre? Appointment we don't. Know my 335 00:19:45,119 --> 00:19:47,479 Speaker 4: guess is it. DOES i agree with The trump administration in, 336 00:19:47,520 --> 00:19:51,919 Speaker 4: that but also what kind of process is? Due and 337 00:19:52,000 --> 00:19:54,440 Speaker 4: can it be? Reviewable so those are the three, issues 338 00:19:54,480 --> 00:19:58,639 Speaker 4: AND i think The court will probably rule against The 339 00:19:58,640 --> 00:20:01,640 Speaker 4: trump administration on the ground that at least there has 340 00:20:01,680 --> 00:20:07,160 Speaker 4: to be an informal opportunity for the officer to give. 341 00:20:07,359 --> 00:20:09,720 Speaker 4: First in this, case her side of the story that 342 00:20:10,160 --> 00:20:12,920 Speaker 4: she did not engage in any kind of mortgage, fire 343 00:20:13,000 --> 00:20:14,919 Speaker 4: she was not given that. Opportunity SO i think a 344 00:20:15,080 --> 00:20:19,600 Speaker 4: narrow due process ruling can leave the officer in place 345 00:20:19,960 --> 00:20:22,680 Speaker 4: and then leave for another. Day the very important decision 346 00:20:23,240 --> 00:20:25,760 Speaker 4: about if we can only remove an officer for a, 347 00:20:25,920 --> 00:20:30,119 Speaker 4: cause what is? Caused is it neglective? Duties is it wrong? 348 00:20:30,240 --> 00:20:31,600 Speaker 4: Doing you, know what does it? 349 00:20:31,640 --> 00:20:35,400 Speaker 2: Constitute so that case was argued In, january and now 350 00:20:35,520 --> 00:20:40,040 Speaker 2: another case related though not the, same that was argued 351 00:20:40,320 --> 00:20:44,600 Speaker 2: at the beginning Of, december is Where trump wants to 352 00:20:44,640 --> 00:20:50,200 Speaker 2: Remove Rebecca Kelly, slaughter who's A Federal trade, commissioner despite 353 00:20:50,200 --> 00:20:54,119 Speaker 2: a law that says commissioners can only be fired for specific. 354 00:20:54,240 --> 00:20:56,840 Speaker 4: Reasons, yeah and this has been in the crosshairs of 355 00:20:56,840 --> 00:20:59,560 Speaker 4: The trump. Administration this is part of the whole unitary 356 00:20:59,600 --> 00:21:02,639 Speaker 4: executive movement saying that the president must be able to 357 00:21:02,720 --> 00:21:07,240 Speaker 4: closely manage his subordinates in the executive, branch and the 358 00:21:07,320 --> 00:21:11,280 Speaker 4: administration as several ball before him as, well has Attacked Humpery's, 359 00:21:11,280 --> 00:21:16,639 Speaker 4: executor which Protected congress's decision to infect shield the some 360 00:21:16,920 --> 00:21:20,080 Speaker 4: officers From matt will renewbal. Authority and so that's been 361 00:21:20,119 --> 00:21:24,119 Speaker 4: a target for many. Administrations he picked the exact, target 362 00:21:24,160 --> 00:21:27,560 Speaker 4: the Same Federal Trade commission that was in The Humphrey's executor. 363 00:21:27,720 --> 00:21:31,480 Speaker 4: Decision AND i think the consensus is largely that The 364 00:21:31,520 --> 00:21:35,840 Speaker 4: Supreme court will Overrule humphrey's executor at least in part 365 00:21:35,880 --> 00:21:38,400 Speaker 4: of not in the hole and so giving The trump 366 00:21:38,400 --> 00:21:41,960 Speaker 4: administration a big. Victory but the question in my mind 367 00:21:42,560 --> 00:21:45,639 Speaker 4: is how far will the case. Go will they say 368 00:21:45,880 --> 00:21:49,600 Speaker 4: all executive branch? Officials will they say all superior executive branch? 369 00:21:49,640 --> 00:21:55,200 Speaker 4: Officials will they say only some with certain types of enforcement? Responsibilities, 370 00:21:55,680 --> 00:21:59,680 Speaker 4: so for, instance there are executive branch agencies that engage in, 371 00:21:59,720 --> 00:22:04,400 Speaker 4: acasion would their membership also have to be removable at 372 00:22:04,400 --> 00:22:08,479 Speaker 4: will by the. President so the skull of where the 373 00:22:08,520 --> 00:22:12,080 Speaker 4: president under The constitution Or article two must have this 374 00:22:12,400 --> 00:22:16,879 Speaker 4: close authority to supervise subordinates is at stake. HERE i 375 00:22:16,880 --> 00:22:19,160 Speaker 4: don't think the court will reach out to think about 376 00:22:19,320 --> 00:22:22,760 Speaker 4: all of those, contexts but it will at least contain 377 00:22:22,840 --> 00:22:27,120 Speaker 4: the decision will contain some hints about why The Federal 378 00:22:27,119 --> 00:22:31,359 Speaker 4: Trade commission heads must be removable at will and what 379 00:22:31,520 --> 00:22:34,880 Speaker 4: other similar agencies must be conformed in that same. 380 00:22:34,880 --> 00:22:39,000 Speaker 2: Structure do you think that they might announce these two decisions? 381 00:22:39,040 --> 00:22:41,600 Speaker 2: Together do you think that one is waiting on the. 382 00:22:41,600 --> 00:22:43,280 Speaker 1: Other they. 383 00:22:43,280 --> 00:22:45,600 Speaker 4: COULD i, mean there'll be a nice pair both because 384 00:22:45,760 --> 00:22:48,919 Speaker 4: it's really about the same issue in different forms of 385 00:22:48,920 --> 00:22:52,240 Speaker 4: the same, issue and one will probably go against the 386 00:22:52,240 --> 00:22:54,159 Speaker 4: administration and one will go for the. 387 00:22:54,200 --> 00:22:58,800 Speaker 2: Administration coming up more on the Upcoming Supreme court, decisions 388 00:22:59,359 --> 00:23:04,120 Speaker 2: including a seeming divide on election day ballot. Deadlines you're 389 00:23:04,160 --> 00:23:09,639 Speaker 2: listening To. Bloomberg tomorrow The Supreme court will be announcing 390 00:23:09,760 --> 00:23:14,679 Speaker 2: decisions in argued. Cases there are seventeen cases left to 391 00:23:14,760 --> 00:23:19,520 Speaker 2: decide before the justices leave for their summer. Vacations i've 392 00:23:19,520 --> 00:23:22,200 Speaker 2: been talking To Professor Harold krent of The Chicago Kent 393 00:23:22,400 --> 00:23:26,440 Speaker 2: college Of. Law how let's turn now to The court's 394 00:23:26,520 --> 00:23:30,680 Speaker 2: decision about A mississippi law that allows mail in ballots 395 00:23:30,680 --> 00:23:33,639 Speaker 2: to be counted as long as they arrive within five 396 00:23:33,800 --> 00:23:37,760 Speaker 2: business days of election. Day as many as twenty nine 397 00:23:37,800 --> 00:23:38,760 Speaker 2: states have similar. 398 00:23:38,880 --> 00:23:43,280 Speaker 4: Laws so the issue is When congress has designated election 399 00:23:43,400 --> 00:23:46,639 Speaker 4: day as the First tuesday after the Second, monday IF 400 00:23:46,640 --> 00:23:50,240 Speaker 4: i remember correctly In, november what does that? Mean can 401 00:23:50,280 --> 00:23:53,800 Speaker 4: you then count votes after election day? Itself unless all 402 00:23:53,840 --> 00:23:57,920 Speaker 4: the votes be tallied by election? Day and obviously In 403 00:23:58,000 --> 00:24:02,879 Speaker 4: mississippi and twenty twenty in The pandemic allowed for counting 404 00:24:02,920 --> 00:24:06,920 Speaker 4: ballots after election, day as does over half the. States 405 00:24:07,200 --> 00:24:10,399 Speaker 4: and so it's a really interesting vote Because mississippi is 406 00:24:10,440 --> 00:24:12,920 Speaker 4: A republican state and it's the one that's going against 407 00:24:12,960 --> 00:24:17,359 Speaker 4: The trump. Administration and it's interesting in addition because of 408 00:24:17,400 --> 00:24:20,239 Speaker 4: the fact that if you think of, federalism this is 409 00:24:20,440 --> 00:24:23,720 Speaker 4: a effort really to limit the rights of the states 410 00:24:23,840 --> 00:24:26,520 Speaker 4: visa via the federal. Government so it's some odd shiging 411 00:24:26,720 --> 00:24:31,240 Speaker 4: betfellows in this. Case BUT i think it's just a 412 00:24:31,359 --> 00:24:33,520 Speaker 4: kind of a more narrow focus on what does election 413 00:24:33,640 --> 00:24:37,639 Speaker 4: day mean and do we need to have decisions or 414 00:24:37,760 --> 00:24:41,439 Speaker 4: votes counted at least by election, day if not decisions 415 00:24:41,640 --> 00:24:44,240 Speaker 4: in order to conform to What congress had in mind 416 00:24:44,440 --> 00:24:46,679 Speaker 4: by saying there should be one election day in the. 417 00:24:46,720 --> 00:24:50,959 Speaker 2: Country during the oral, arguments The Chief justice And Justice 418 00:24:51,000 --> 00:24:54,680 Speaker 2: barrett raised some questions, about, well if we don't allow 419 00:24:54,720 --> 00:24:58,320 Speaker 2: these late arriving, ballots does that have an effect on early, 420 00:24:58,400 --> 00:25:02,639 Speaker 2: voting because early voting it's before the date That congress, said. 421 00:25:03,200 --> 00:25:05,240 Speaker 4: Yeah it. DEPENDS i think they could get around that 422 00:25:05,400 --> 00:25:08,000 Speaker 4: by saying that election day means votes have to be, 423 00:25:08,080 --> 00:25:12,480 Speaker 4: tallied as opposed to saying that it's not a prohibition 424 00:25:12,720 --> 00:25:16,800 Speaker 4: on votes being tallied, beforehand at least some. Votes SO 425 00:25:17,000 --> 00:25:19,080 Speaker 4: i think there is a distinction. There but you, know 426 00:25:19,119 --> 00:25:23,879 Speaker 4: you could say that a broad definition of election day 427 00:25:23,920 --> 00:25:27,199 Speaker 4: would really limit the discretion of the states to have 428 00:25:27,280 --> 00:25:30,600 Speaker 4: early voting and late. Voting and, again think about military, 429 00:25:30,680 --> 00:25:34,280 Speaker 4: voting voting during. Wars we've never been able to count 430 00:25:34,320 --> 00:25:37,320 Speaker 4: all the votes on election day because you, know individuals 431 00:25:37,359 --> 00:25:41,000 Speaker 4: in our country are dispersed for work for military reasons and. 432 00:25:41,080 --> 00:25:44,399 Speaker 4: Others so it's very it's a practical. Matter it's a 433 00:25:44,520 --> 00:25:47,440 Speaker 4: very important, decision but one in which it's right NOW 434 00:25:47,440 --> 00:25:48,159 Speaker 4: i think too close to. 435 00:25:48,240 --> 00:25:52,640 Speaker 2: Call, yeah maybe a division down ideological, lines Which i'm 436 00:25:52,680 --> 00:25:54,560 Speaker 2: expecting several of. 437 00:25:54,600 --> 00:25:57,520 Speaker 4: Those tradition in this case is it will not be 438 00:25:57,560 --> 00:26:00,600 Speaker 4: strictly on ideological, lines BECAUSE i think think the issues 439 00:26:00,640 --> 00:26:02,720 Speaker 4: really do cut across the ideological. 440 00:26:02,800 --> 00:26:05,480 Speaker 1: Spectrum, okay we shall, See, yes we. 441 00:26:05,520 --> 00:26:05,639 Speaker 3: Will. 442 00:26:06,040 --> 00:26:08,920 Speaker 2: Won't we won't place a bed on, it but we'll. 443 00:26:08,960 --> 00:26:13,240 Speaker 2: See so, now there are federal caps that limit spending 444 00:26:13,280 --> 00:26:17,600 Speaker 2: by political parties in coordination with. Candidates have The conservatives 445 00:26:17,600 --> 00:26:21,280 Speaker 2: on The Supreme court ever found a restriction on campaign 446 00:26:21,359 --> 00:26:23,960 Speaker 2: contributions that they agreed. 447 00:26:24,000 --> 00:26:27,679 Speaker 4: WITH i think this one will be decided on ideological. 448 00:26:27,720 --> 00:26:34,000 Speaker 4: Grounds and obviously the idea that money is speech resonates 449 00:26:34,080 --> 00:26:37,200 Speaker 4: greatly with a certain ideological part of The Supreme, court 450 00:26:37,640 --> 00:26:41,200 Speaker 4: it is. United and here in this, case they're looking 451 00:26:41,240 --> 00:26:45,440 Speaker 4: at what's called political coordinated, spending whether the political parties 452 00:26:45,440 --> 00:26:49,280 Speaker 4: can coordinate with the campaigns of various individual candidates to 453 00:26:49,400 --> 00:26:53,480 Speaker 4: evade the limits set By. Congress and so this really 454 00:26:53,520 --> 00:26:57,040 Speaker 4: at the heart is Can congress limit at all the 455 00:26:57,119 --> 00:27:00,520 Speaker 4: types of expenditures that are made to influence Campaigns democrats 456 00:27:00,560 --> 00:27:04,960 Speaker 4: work For, republicans and obviously The democrats would benefit from 457 00:27:05,000 --> 00:27:07,600 Speaker 4: this as well if the caps are, sprinking though what 458 00:27:07,640 --> 00:27:10,640 Speaker 4: they have not attacked the theory in this particular. 459 00:27:10,680 --> 00:27:15,560 Speaker 2: Case why with campaign finance contributions is It republicans that 460 00:27:15,640 --> 00:27:17,560 Speaker 2: want to get rid of them And democrats that want 461 00:27:17,600 --> 00:27:17,960 Speaker 2: to keep. 462 00:27:18,000 --> 00:27:21,080 Speaker 4: THEM i think it's a sense that even Though democrats would, 463 00:27:21,119 --> 00:27:23,399 Speaker 4: benefit they know that they need to be sort of 464 00:27:23,800 --> 00:27:29,240 Speaker 4: consistent with their, base and their base tend to be smaller, 465 00:27:29,480 --> 00:27:32,360 Speaker 4: donors at least that's perceived to be the, case even 466 00:27:32,400 --> 00:27:35,320 Speaker 4: if it's not, true and so they want to be 467 00:27:35,560 --> 00:27:39,360 Speaker 4: seen as people not wanting big money to rule. Everything 468 00:27:39,640 --> 00:27:42,399 Speaker 4: and that's a message that resonates with at least a 469 00:27:42,480 --> 00:27:43,680 Speaker 4: large segment Of democratic. 470 00:27:43,760 --> 00:27:48,960 Speaker 2: Voters let's turn out to transgender issues in, sports state 471 00:27:49,080 --> 00:27:53,479 Speaker 2: laws In idaho And West virginia ban transgender girls and 472 00:27:53,520 --> 00:27:57,119 Speaker 2: women from competing on female athletic. Teams AND i mean 473 00:27:57,160 --> 00:28:00,280 Speaker 2: there are twenty seven states with similar laws. Us the 474 00:28:00,400 --> 00:28:02,960 Speaker 2: arguments on both sides of this, case. 475 00:28:03,320 --> 00:28:05,720 Speaker 4: SURE i, mean the apartments of the band say that 476 00:28:05,800 --> 00:28:09,160 Speaker 4: this is a violation both With title, nine which limits 477 00:28:09,200 --> 00:28:12,240 Speaker 4: the kinduct of any kind of school district that accepts 478 00:28:12,240 --> 00:28:16,359 Speaker 4: federal money and violates the Equal protection clause of The. 479 00:28:16,400 --> 00:28:19,560 Speaker 4: Constitution so it's an echo of the case that The 480 00:28:19,600 --> 00:28:22,520 Speaker 4: Supreme court decide just recently In, scrimmette when the case 481 00:28:22,920 --> 00:28:27,760 Speaker 4: rejected similar claims Against tennessee's ban on hormone treatment for. 482 00:28:28,080 --> 00:28:31,960 Speaker 4: Minors in this, case though it's participation in sporting events 483 00:28:31,960 --> 00:28:34,399 Speaker 4: in high, school people have more of a visceral reaction to, 484 00:28:34,440 --> 00:28:37,159 Speaker 4: IT i think than the, use for, instance of different. 485 00:28:37,160 --> 00:28:43,040 Speaker 4: Bathrooms AND i think that The conservatives will probably when 486 00:28:43,200 --> 00:28:45,360 Speaker 4: on this one on the theory that there's at least 487 00:28:45,400 --> 00:28:49,440 Speaker 4: a rational basis for school districts to, decide either because 488 00:28:49,600 --> 00:28:54,200 Speaker 4: of safety or because of, fairness not to allow trans 489 00:28:54,280 --> 00:28:58,000 Speaker 4: kids on women's, streams but to allow trans kids on men's. 490 00:28:58,040 --> 00:29:01,520 Speaker 4: Teams is obviously a lack of. Cemit but then the 491 00:29:01,560 --> 00:29:04,280 Speaker 4: only WAY i think for The challenges to win is 492 00:29:04,280 --> 00:29:07,800 Speaker 4: if they get some kind of increased protection due to 493 00:29:07,840 --> 00:29:12,080 Speaker 4: the claim either that this is masquerade of sex, discrimination 494 00:29:12,560 --> 00:29:15,240 Speaker 4: that this is like The title seven case in Boss, 495 00:29:15,240 --> 00:29:18,560 Speaker 4: stock because where The Supreme court held that any kind 496 00:29:18,720 --> 00:29:22,880 Speaker 4: of discrimination on the basis of appearance or gender or 497 00:29:22,920 --> 00:29:26,600 Speaker 4: being trans it was a violation Of title. Seven though you, 498 00:29:26,640 --> 00:29:29,520 Speaker 4: Know justice score such signal that he've Viewed title nine 499 00:29:29,560 --> 00:29:31,600 Speaker 4: differently The title seven that even though they were modeled 500 00:29:31,640 --> 00:29:35,120 Speaker 4: on the same. Thing so you, know the question really 501 00:29:35,160 --> 00:29:37,720 Speaker 4: IS i think most people have a consensus that this 502 00:29:37,760 --> 00:29:41,080 Speaker 4: would pass any kind of rational basis. Test but if 503 00:29:41,080 --> 00:29:44,000 Speaker 4: the scrutiny gets more, strict then it's more difficult to 504 00:29:44,160 --> 00:29:47,800 Speaker 4: justify the. Ban and we don't have good statistics on 505 00:29:48,240 --> 00:29:51,320 Speaker 4: what is the risk of having trans kids play on 506 00:29:51,480 --> 00:29:54,160 Speaker 4: high schools sports. Teams we don't know. Them then the 507 00:29:54,400 --> 00:29:57,920 Speaker 4: risks are more, theoretical and so of any kind of 508 00:29:57,960 --> 00:30:02,600 Speaker 4: heightened attention that is paid WOULD i think result in 509 00:30:02,640 --> 00:30:06,000 Speaker 4: a victory for the challengers not protecting. That but that 510 00:30:06,040 --> 00:30:08,880 Speaker 4: would be the case if the scrutiny is. 511 00:30:09,000 --> 00:30:12,680 Speaker 2: Raised the woman in The idaho case try to get 512 00:30:12,720 --> 00:30:16,479 Speaker 2: the case drop because she was no longer. Competing idaho 513 00:30:16,480 --> 00:30:19,560 Speaker 2: didn't want the case. Dropped in The West virginia, case 514 00:30:19,600 --> 00:30:24,640 Speaker 2: there was an argument that the young woman had puberty, 515 00:30:24,640 --> 00:30:28,680 Speaker 2: blockers so she never really had those hormones that would 516 00:30:28,680 --> 00:30:31,240 Speaker 2: have given her an edge male. Hormones you, KNOW i 517 00:30:31,280 --> 00:30:33,880 Speaker 2: wonder if that they're not going to get that deeply 518 00:30:34,000 --> 00:30:37,480 Speaker 2: into it and just base the decision on the plaintiffs being. 519 00:30:38,200 --> 00:30:41,400 Speaker 5: Transgender, yeah you, Know my sense from looking at the 520 00:30:41,400 --> 00:30:44,560 Speaker 5: transcript oral argument is that The court could get rid 521 00:30:44,600 --> 00:30:47,920 Speaker 5: of this case as you, suggest but unlikely to The 522 00:30:47,960 --> 00:30:51,680 Speaker 5: court seems to want to address these, issues just as 523 00:30:51,720 --> 00:30:56,000 Speaker 5: it Did inscrammtti last term and sort of widen the 524 00:30:56,080 --> 00:31:00,520 Speaker 5: areas in which states that they so choose can rule 525 00:31:00,720 --> 00:31:02,080 Speaker 5: against transkit. 526 00:31:02,160 --> 00:31:06,200 Speaker 4: Equality that's my. Sense but there are the seats there 527 00:31:06,560 --> 00:31:09,760 Speaker 4: that The court wants to. Ducket it can duck it, 528 00:31:09,880 --> 00:31:12,400 Speaker 4: in probably with a good face. 529 00:31:12,520 --> 00:31:13,360 Speaker 1: If it doesn't duck. 530 00:31:13,440 --> 00:31:15,720 Speaker 2: It this is one of the cases WHERE i, SAY 531 00:31:15,720 --> 00:31:19,800 Speaker 2: i will fall off my chair if they actually rule 532 00:31:20,000 --> 00:31:22,680 Speaker 2: in favor of transgender, rights because since the Boss stock, 533 00:31:22,800 --> 00:31:28,480 Speaker 2: case they have ruled consistently against transgender rights AND lgbtq. 534 00:31:28,680 --> 00:31:30,840 Speaker 1: RIGHTS i, mean it's just pretty. 535 00:31:30,840 --> 00:31:34,640 Speaker 4: Obvious, Yeah Boss stock was the high, point if you, 536 00:31:34,720 --> 00:31:38,560 Speaker 4: will a pinnacle of protection for people WERE lgbt and 537 00:31:38,680 --> 00:31:42,760 Speaker 4: trans and there has been a starting decline after, that 538 00:31:43,080 --> 00:31:46,280 Speaker 4: AND i predict that that trend will. 539 00:31:46,320 --> 00:31:47,920 Speaker 1: Continue so then we Have. 540 00:31:48,240 --> 00:31:52,640 Speaker 2: Bayer the company says that federal regulators didn't require a 541 00:31:52,720 --> 00:31:57,080 Speaker 2: cancer warning and so state regulators shouldn't have been allowed 542 00:31:57,080 --> 00:32:01,760 Speaker 2: to require a cancer warning. Either this is only about 543 00:32:02,160 --> 00:32:06,120 Speaker 2: one suit involving failure to, warn but there are so 544 00:32:06,200 --> 00:32:07,040 Speaker 2: many suits Against. 545 00:32:07,040 --> 00:32:11,120 Speaker 4: BAYER i think it's about sixty. Thousand so under The 546 00:32:11,360 --> 00:32:15,600 Speaker 4: Federal Regulation, statute it seems that THE fda, decides you, 547 00:32:15,640 --> 00:32:18,240 Speaker 4: know what is safe what is not, safe and has 548 00:32:18,320 --> 00:32:22,400 Speaker 4: only approved warnings or not warnings on. Labels of this, Case, 549 00:32:22,480 --> 00:32:25,120 Speaker 4: roundup which is a well known what's a well known 550 00:32:25,400 --> 00:32:29,280 Speaker 4: a bunch of side which obviously had bad repercussions and 551 00:32:29,560 --> 00:32:32,040 Speaker 4: it leads to. Cancer and so the question is that 552 00:32:32,320 --> 00:32:36,760 Speaker 4: could states or learn About roundup without any kind of federal. 553 00:32:36,840 --> 00:32:41,000 Speaker 4: Blessing and you, KNOW i think here the administration is 554 00:32:41,040 --> 00:32:43,800 Speaker 4: on a pretty strong ground to have some kind of 555 00:32:43,920 --> 00:32:46,960 Speaker 4: uniform regulation that you, know to have rather up being 556 00:32:46,960 --> 00:32:49,000 Speaker 4: okay in one state or have a warning in one 557 00:32:49,000 --> 00:32:51,160 Speaker 4: state and not in the. Other and what about, runoff you, 558 00:32:51,200 --> 00:32:54,720 Speaker 4: know in terms of the, environment is not a kind 559 00:32:54,720 --> 00:32:58,880 Speaker 4: of crazy way to think about regulation that seems to 560 00:32:58,960 --> 00:33:02,880 Speaker 4: need a uniform or. Approach so it's the federal regulation 561 00:33:03,000 --> 00:33:06,960 Speaker 4: From congress that's at least directed From, congress seems to 562 00:33:07,040 --> 00:33:11,320 Speaker 4: contemplate one size fits all regulation of any chemicals coming 563 00:33:11,400 --> 00:33:15,480 Speaker 4: within the purview of this particular regulatory. Scheme and SO 564 00:33:16,160 --> 00:33:18,400 Speaker 4: i think that on, average again we're going to have 565 00:33:18,440 --> 00:33:22,720 Speaker 4: to see a SPLIT i think in ideological leanings amongst the. 566 00:33:22,840 --> 00:33:26,160 Speaker 4: JUSTICES i think there'll be a coalition both of conservative 567 00:33:26,160 --> 00:33:29,160 Speaker 4: and liberal judges going both. Ways but IF i had to, 568 00:33:29,160 --> 00:33:32,440 Speaker 4: PREDICT i would predict that the federal government would win 569 00:33:32,560 --> 00:33:37,160 Speaker 4: as against the, states simply because it seems that this 570 00:33:37,240 --> 00:33:41,440 Speaker 4: regulatory scheme is focused on the need for, uniformity and 571 00:33:41,520 --> 00:33:44,480 Speaker 4: in this, case THE fda did not require any kind 572 00:33:44,520 --> 00:33:48,480 Speaker 4: of more stringent regulation around up despite what we unfortunately 573 00:33:48,520 --> 00:33:51,520 Speaker 4: have found out is about its true. Costs so the 574 00:33:51,600 --> 00:33:53,440 Speaker 4: interesting thing about these cases is we're not going to 575 00:33:53,440 --> 00:33:56,560 Speaker 4: see UNIFORM i think ideological bands of the court AND 576 00:33:56,600 --> 00:33:59,400 Speaker 4: i don't think we're going to see Uniform trump administrational. 577 00:33:59,400 --> 00:34:03,120 Speaker 4: Wins are they going to be a mixed, set and 578 00:34:03,160 --> 00:34:05,680 Speaker 4: then we'll have to see in each particular case on 579 00:34:05,720 --> 00:34:07,840 Speaker 4: how the court, resolves. 580 00:34:07,760 --> 00:34:11,200 Speaker 2: And we will see that starting tomorrow at. Ten thanks 581 00:34:11,280 --> 00:34:14,040 Speaker 2: so much for getting us ready for what's coming. Up 582 00:34:14,080 --> 00:34:17,880 Speaker 2: how That's Professor Harold crant of The Chicago Kent college Of. 583 00:34:18,000 --> 00:34:20,600 Speaker 2: Law and that's it for this edition Of The Bloomberg Law. 584 00:34:20,640 --> 00:34:23,400 Speaker 2: Show remember you can always get the latest legal news 585 00:34:23,520 --> 00:34:27,279 Speaker 2: on Our Bloomberg Law. Podcast you can find them On Apple, Podcasts, 586 00:34:27,320 --> 00:34:32,840 Speaker 2: spotify and at www Dot bloomberg dot com slash podcast Slash, 587 00:34:32,920 --> 00:34:35,680 Speaker 2: law and remember to tune Into The Bloomberg Law show 588 00:34:35,840 --> 00:34:39,640 Speaker 2: every weeknight at ten Pm Wall Street. Time I'm June 589 00:34:39,680 --> 00:34:41,840 Speaker 2: grosso and you're listening To bloomberg