WEBVTT - Hitman's Incriminating Confession 0:00:03.120 --> 0:00:07.960 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:09.080 --> 0:00:12.719 This week, the Supreme Court justices grapple with the question 0:00:12.800 --> 0:00:15.360 of whether a man serving a life sentence for his 0:00:15.520 --> 0:00:19.000 role on an international kill team should get a new 0:00:19.040 --> 0:00:22.720 trial because the confession of a co defendant implicated him 0:00:22.720 --> 0:00:25.880 in the crime. Adam Semiah was tried with two other 0:00:25.920 --> 0:00:28.800 men for killing a real estate broker in the Philippines. 0:00:29.440 --> 0:00:32.320 One of his co defendants had confessed to the crime, 0:00:32.479 --> 0:00:36.840 and prosecutors used that confession at trial, with Semiah's name 0:00:36.880 --> 0:00:41.479 redacted and replaced by the words someone and the other person. 0:00:41.920 --> 0:00:46.160 Semiah argued that violated his right to confront witnesses testifying 0:00:46.200 --> 0:00:51.600 against him, but the Conservative justices, including Chief Justice John Roberts, 0:00:51.880 --> 0:00:56.240 appeared skeptical about that. Maybe they will wonder, Weld, why 0:00:56.280 --> 0:00:58.320 are they saying another person if it was this guy, 0:01:00.120 --> 0:01:02.440 be because it's somebody else that they don't, you know, 0:01:02.600 --> 0:01:07.959 haven't brought to trial. The liberal justice is, like Elena Kagan, 0:01:08.280 --> 0:01:12.440 seem more accepting of Samea's arguments. It's just as good 0:01:12.520 --> 0:01:14.959 to say the woman and I went out and robbed 0:01:14.959 --> 0:01:18.479 Phil as it is to say Mary, the person sitting 0:01:18.520 --> 0:01:21.160 on my left went out and robbed Bill in that 0:01:21.319 --> 0:01:23.520 in that case, right, it does the same thing. It 0:01:23.880 --> 0:01:28.399 identifies the person joining me as former federal prosecutor George 0:01:28.480 --> 0:01:32.400 Newhouse of Richard's Carrington. George tell us about the issue here. 0:01:32.760 --> 0:01:35.840 The legal issue in this case is the admissibility of 0:01:35.959 --> 0:01:40.040 a co conspirator statement that criminates both the defendant who 0:01:40.040 --> 0:01:44.480 made the statement and his co conspirator. In this case dammiab. 0:01:44.800 --> 0:01:47.480 When they go to trial against two individuals and they 0:01:47.520 --> 0:01:51.600 try to offer this statement against the non testifying defendant, 0:01:51.920 --> 0:01:55.160 it's not admissible because it's a hearsay statement of not 0:01:55.240 --> 0:01:58.560 being offered against the person who made it, mister Stillwell, 0:01:58.920 --> 0:02:02.000 being offered against codefendant. So the law is clear and 0:02:02.040 --> 0:02:04.520 has always been clear, that that statement is not admissible. 0:02:04.760 --> 0:02:07.760 And in the original case Bruton Bruton objected and the 0:02:07.840 --> 0:02:10.640 judge said, that's fine. I will instruct the jury that 0:02:10.720 --> 0:02:13.919 it cannot be used against mister Bruton. It's only offered 0:02:13.960 --> 0:02:17.400 against the codefendant who made the admission. And of course, 0:02:17.400 --> 0:02:20.639 in Bruton Bruton objective, stead, your honor, the jury can 0:02:20.840 --> 0:02:24.239 hardly disregard that evidence, even though they're instructed to do so. 0:02:24.240 --> 0:02:27.520 So the Supreme Court jaid, that's right. There are limited 0:02:27.520 --> 0:02:32.040 powers of the jury to disregard highly probitive, highly incriminating evidence. 0:02:32.280 --> 0:02:35.080 So that's now called Bruton error. And when the government 0:02:35.120 --> 0:02:39.200 wants to introduce that statement, they either have to separate 0:02:39.240 --> 0:02:42.480 the trial, have a separate trial for that defendant, or 0:02:42.520 --> 0:02:45.760 they have to not offer that statement against the defendant. 0:02:45.800 --> 0:02:48.560 So in this case, a very similar situation, two people 0:02:48.560 --> 0:02:51.639 committed the crime. This was a shooting in the Philippines, 0:02:51.840 --> 0:02:54.680 murdered an individual. There were two people in the car, 0:02:55.000 --> 0:02:58.200 and still Well confessed, and they of course offered that 0:02:58.600 --> 0:03:03.000 confession against both individuals. But what they did was they redacted, 0:03:03.360 --> 0:03:07.680 they cleaned up the confession for the person who testified. 0:03:07.720 --> 0:03:11.840 The law enforcement officers said, well Stillwell admitted to the crime, 0:03:11.880 --> 0:03:13.560 and he admitted that he was in the car with 0:03:13.639 --> 0:03:16.600 another person not identified. And of course the issue in 0:03:16.639 --> 0:03:20.080 this case is the defendant Sammy us saying, really, the 0:03:20.160 --> 0:03:23.320 jury will immediately know who that other person is by 0:03:23.360 --> 0:03:27.200 the context of the evidence presented enhanced. It's a brutal 0:03:27.320 --> 0:03:30.040 error because you're offering an out of corpse statement against me. 0:03:30.600 --> 0:03:33.400 And it's what we call a confrontation clause issue. That 0:03:33.760 --> 0:03:37.040 the six Adenment allows you the right to confront and 0:03:37.160 --> 0:03:39.640 proper examine your accusers. You can't do it when it's 0:03:39.640 --> 0:03:42.200 an out of court statement. So the issue before the 0:03:42.240 --> 0:03:45.080 court is is this fall within the purview of Bruton 0:03:45.280 --> 0:03:49.040 or is it an acceptable correction that doesn't harm the 0:03:49.080 --> 0:03:52.800 defendant's chance and doesn't violate the sixth Amendment right of confrontations. 0:03:52.920 --> 0:03:55.240 That will be the issue of Supreme Court decide. So 0:03:55.360 --> 0:03:58.080 it seemed like some of the conservative justices, like the 0:03:58.160 --> 0:04:01.760 Chief Justice, said, well, you know, you can't really tell 0:04:02.040 --> 0:04:04.840 and it is not necessarily referring to the defendant. But 0:04:04.880 --> 0:04:07.600 then you had some of the liberal justices like Elina 0:04:07.720 --> 0:04:10.880 Kagan saying, come on, obviously you're going to know who 0:04:10.920 --> 0:04:13.800 it is the person sitting next to you that explains it. 0:04:13.800 --> 0:04:17.640 It makes sense. But the conservative justices who think that 0:04:18.080 --> 0:04:22.360 a reference to another person unnamed will not immediately lead 0:04:22.400 --> 0:04:26.440 the fury to the defendant is ridiculous in that case. 0:04:26.640 --> 0:04:29.239 From the context there are only two people in the car. 0:04:29.640 --> 0:04:31.320 They're going to figure out who was in the car, 0:04:31.760 --> 0:04:34.240 and they're going to connect the dots, and then they 0:04:34.279 --> 0:04:37.640 will disregard the instruction that the evidence is only offered 0:04:37.680 --> 0:04:40.960 against mister Stillwell, the defendant who made the statement. So 0:04:41.080 --> 0:04:44.080 it really is a reality test, and I predict that 0:04:44.200 --> 0:04:47.160 the court will find that this is brutal error. You know, 0:04:47.320 --> 0:04:50.080 the choice the real prosecutors have to make is do 0:04:50.160 --> 0:04:52.880 they want to try the two together sometimes they can 0:04:52.920 --> 0:04:55.240 sever the cases, or do you not want to offer 0:04:55.279 --> 0:04:58.359 the confession or you need to change the confession so 0:04:58.440 --> 0:05:01.200 there isn't a reference to the other person in the 0:05:01.279 --> 0:05:03.600 car in this case, Sammy, of the person that they 0:05:03.720 --> 0:05:07.080 wound up convicting was the shoot her. So the question 0:05:07.200 --> 0:05:12.240 is context and interpretation, and this is an interesting issue, 0:05:12.240 --> 0:05:15.160 but my prediction is that they will find that it's 0:05:15.160 --> 0:05:18.560 the brutent error should be justice. Amy Coney, Barrett and 0:05:18.600 --> 0:05:22.839 some of the other conservatives seemed concerned about having to 0:05:22.880 --> 0:05:24.960 sever the trials. So it seems to me at the 0:05:25.040 --> 0:05:26.800 end of the day, it boils down to you just 0:05:26.839 --> 0:05:29.400 can't try two defendants together if you have a non 0:05:29.440 --> 0:05:33.920 testifying defendant and confession. So they seem rather reluctant about 0:05:34.000 --> 0:05:37.240 severing trials. That's a very good point, and that's a 0:05:37.279 --> 0:05:42.080 traditional reaction of the courts. They want to optimize judicial economy. 0:05:42.200 --> 0:05:44.640 They want to have one trial rather than force the 0:05:44.720 --> 0:05:47.520 court to do true trials. And most trial judges are 0:05:47.560 --> 0:05:50.560 the same. They're very reluctant to grant a severance motion, 0:05:51.000 --> 0:05:53.760 which really would be the motion you make. But in 0:05:53.800 --> 0:05:55.480 the face of that, you still have to say, the 0:05:55.600 --> 0:05:59.360 constitutional rights of the defendant against whom this statement is 0:05:59.400 --> 0:06:02.520 really affect to be going to cause prejudice, even though 0:06:02.600 --> 0:06:05.360 the jury is instructed not to fold it against him. 0:06:05.480 --> 0:06:08.840 I think his paramount because it's his constitutional rights. And frankly, 0:06:08.880 --> 0:06:10.719 the government chas to make a choice. They can either 0:06:10.760 --> 0:06:13.760 have two trials or they can not offer that statement 0:06:14.040 --> 0:06:17.200 in the evidence. Either way, the government says will harm, 0:06:17.680 --> 0:06:19.360 and that's what the court likes to do. I have 0:06:19.440 --> 0:06:23.080 to balance judicial economy against the rights of the defendant. 0:06:23.400 --> 0:06:27.200 Pennsylvania led thirty two states in an amicuous brief urging 0:06:27.240 --> 0:06:30.080 the court to uphold the use of the confession, noting 0:06:30.120 --> 0:06:32.279 that thousands of trials in the past ten years have 0:06:32.360 --> 0:06:36.560 involved multiple defendants and confessions, and a ruling for sameia 0:06:36.680 --> 0:06:41.240 would lead to retrials and cause prosecutors to try defendants separately. 0:06:41.520 --> 0:06:44.560 What's your take on that argument? Hard to know how 0:06:44.640 --> 0:06:47.719 much credibility to attach to that argument, because Obviously it 0:06:47.800 --> 0:06:53.479 does occur, and obviously it imposes a cost limitation on prosecutors, 0:06:53.480 --> 0:06:56.320 but I don't really think that it's that substantial. This 0:06:56.520 --> 0:06:59.800 Bruton rule and so called Bruton air has been around 0:06:59.839 --> 0:07:03.680 a long time, and frankly, most judges don't allow the 0:07:03.720 --> 0:07:06.840 confession and sanitizing in the way that they did. By 0:07:06.880 --> 0:07:10.200 referring to quote the other person when the context makes 0:07:10.200 --> 0:07:13.840 it clear who that is, is simply a violation of 0:07:13.920 --> 0:07:18.560 that person's constitutional rights in my view. Justice Corsage brought 0:07:18.640 --> 0:07:21.480 up something that I thought was interesting. He said that 0:07:21.560 --> 0:07:26.520 in other instances we do give juries limiting instructions such 0:07:26.560 --> 0:07:31.760 as only consider this non mirandized confession for impeachment purposes. 0:07:32.360 --> 0:07:36.160 So basically, why can't we trust the jury in this 0:07:36.200 --> 0:07:40.640 case with a codefendants confession. It's an interesting argument, and 0:07:40.720 --> 0:07:43.680 it's one of the problems with having justices on the 0:07:43.680 --> 0:07:46.480 Supreme Court who are not had never been trial lawyers 0:07:46.560 --> 0:07:50.440 or trial judges, because people who have corbate experience know 0:07:50.600 --> 0:07:54.960 perfectly well that jurors have a hard time following those 0:07:54.960 --> 0:07:58.680 instructions when they hear this incredibly damning evidence and they 0:07:58.720 --> 0:08:02.240 figure out on the content who it refers to. You 0:08:02.280 --> 0:08:05.320 can tell the jurors whatever you want, but the practicality 0:08:05.480 --> 0:08:09.080 is it causes prejudice to that person and deprives them. 0:08:09.320 --> 0:08:12.520 One would argue a constitutional right, which is to confront 0:08:12.520 --> 0:08:16.080 your accuses. It's the confrontational pause issue and the jury 0:08:16.120 --> 0:08:19.280 instructions that was what was the holding of bruten The 0:08:19.560 --> 0:08:24.480 curative instructions don't always work, and that's reality, George. Does 0:08:24.480 --> 0:08:27.040 this come up often where you have a co defendants 0:08:27.120 --> 0:08:34.520 confession that implicates another defendant introduced at trial? Very frequently 0:08:34.640 --> 0:08:38.360 because now we like to have multiple defendant cases, and 0:08:38.840 --> 0:08:42.640 it's very common that one or more the defendants will confess, 0:08:42.679 --> 0:08:45.959 and when they confess, they tell all and they identify 0:08:46.040 --> 0:08:50.240 all the participants. That evidence is highly incriminating with respect 0:08:50.240 --> 0:08:53.679 of a non testifying defendant. So it's a common situation. 0:08:54.200 --> 0:08:57.520 There are various solutions in some cases of judge will 0:08:57.559 --> 0:09:00.560 hold one trial, but in panel two juries and the 0:09:00.640 --> 0:09:03.719 one juring will hear that tainted confession and the other 0:09:03.760 --> 0:09:06.320 jury will not. So there are measures that the courts 0:09:06.320 --> 0:09:09.319 can take that I think strikes the right balance between 0:09:09.320 --> 0:09:14.400 the defendant constitutional rights and judicial efficiency. I appreciate the 0:09:14.440 --> 0:09:17.959 insights of an experienced trial lawyer George, Thanks so much. 0:09:18.280 --> 0:09:23.880 That's former federal prosecutor George Newhouse of Richard's Carrington. A 0:09:24.080 --> 0:09:28.080 landmark trial is kicking off in Minnesota the first time 0:09:28.160 --> 0:09:31.160 one of the thousands of cases against eat cigarette maker 0:09:31.280 --> 0:09:35.480 Jewel is going to play out in a courtroom. Minnesota 0:09:35.520 --> 0:09:38.960 accuses Jewel and Altria of hooking a generation of young 0:09:39.040 --> 0:09:43.280 people on their products by deception and slick advertising, and 0:09:43.360 --> 0:09:46.079 the state wants the companies to pay up for the 0:09:46.120 --> 0:09:50.400 public costs of addressing an uptick in youth vaping and smoking. 0:09:50.960 --> 0:09:55.400 Joining me is healthcare attorney Harry Nelson of Nelson Hardeman Harry. 0:09:55.400 --> 0:09:59.640 Minnesota is using the theory of public nuisance, a theory 0:09:59.679 --> 0:10:03.160 that was used against the tobacco industry in the nineteen nineties. 0:10:03.240 --> 0:10:07.640 Tell us about it. Yeah, So a public nuisance legal theory. 0:10:07.960 --> 0:10:10.160 It was a series that actually grew out of cases 0:10:10.200 --> 0:10:12.719 where there had been some kind of public harm like 0:10:13.040 --> 0:10:17.040 damage to you know, water sources and from pollution and 0:10:17.120 --> 0:10:20.959 things like that. And the idea was that essentially you 0:10:21.040 --> 0:10:25.960 could hold private parties responsible for the social costs, the 0:10:26.000 --> 0:10:29.200 costs that they impost on society. So we've been seeing 0:10:29.240 --> 0:10:32.560 through the opioid cases of the last few years, they 0:10:32.600 --> 0:10:36.760 attempt to extend that theory against drug makers and pharmacies 0:10:36.760 --> 0:10:39.760 that allowed easy access, and the state of Minnesota is 0:10:39.760 --> 0:10:42.200 trying to do the same thing here, essentially to say 0:10:42.280 --> 0:10:45.400 that Jools, you know, the eas cigarette company that Altria 0:10:45.520 --> 0:10:49.120 is the biggest of the tobacco companies, essentially caused great 0:10:49.160 --> 0:10:53.400 harm to the public by encouraging the sale of the 0:10:53.400 --> 0:10:58.840 e cigarette flavors to teenagers and to underage consumers. Do 0:10:58.840 --> 0:11:01.240 you think that the public Nuisan's theory is a good 0:11:01.280 --> 0:11:06.600 fit for what it's accusing Jewelove. I think it is 0:11:06.880 --> 0:11:09.319 a little bit of a stretch. Personally, I think that 0:11:09.600 --> 0:11:14.920 this issue of underage consumers smoking or engaging in unhealthy 0:11:15.000 --> 0:11:19.839 behaviors is a more complicated problem. It's not a clean 0:11:20.080 --> 0:11:23.040 fit to me that jewel was the entire problem. I 0:11:23.080 --> 0:11:27.000 think there's a broader question about our consumer culture that 0:11:27.160 --> 0:11:31.360 made this product so closely popular with kids. So, while 0:11:31.400 --> 0:11:35.600 I do think that the marketing practices were reprehensible, I'm 0:11:35.600 --> 0:11:38.360 not sure that it's a clear line to say that 0:11:38.400 --> 0:11:40.720 they were the cause of all these problems. I also 0:11:40.720 --> 0:11:43.200 think it's unclear we won't know for years what the 0:11:43.240 --> 0:11:46.440 long term health effects will be of kids starting to 0:11:46.480 --> 0:11:50.200 smoke in eighth grade, and certainly there's been an issue 0:11:50.200 --> 0:11:53.800 of teenagers of older teenagers, tenth graders eleventh graders smoking 0:11:53.880 --> 0:11:58.760 that preday e cigarettes. Minnesota says in papers that in 0:11:58.760 --> 0:12:02.760 the fourteen years between two and twenty fourteen Minnesota high 0:12:02.800 --> 0:12:06.080 schoolers smoking at least one cigarette in the last thirty 0:12:06.160 --> 0:12:09.440 days dropped from thirty two point four percent down to 0:12:09.520 --> 0:12:13.480 ten point six percent. Six years later, nineteen point three 0:12:13.559 --> 0:12:18.080 percent of high schoolers reported having vaped at least once 0:12:18.120 --> 0:12:21.480 in the last thirty days. Does that make their case 0:12:21.720 --> 0:12:25.040 about public health or do they need to do much more? 0:12:26.280 --> 0:12:28.480 I think that's a helpful fact to them. I just 0:12:28.480 --> 0:12:31.120 don't know the whole story. I think the reality is 0:12:31.160 --> 0:12:35.720 like vaping in general has become a more socially acceptable 0:12:35.800 --> 0:12:39.839 and more popular alternative too smoking. So even as we've 0:12:39.840 --> 0:12:43.760 seen a decline in general rates of cigarette smoking, you 0:12:43.760 --> 0:12:47.560 know with greater awareness that vaping is a slightly healthier 0:12:47.640 --> 0:12:51.680 choice of an overall very unhealthy activity. You know it's increased, 0:12:51.679 --> 0:12:53.600 So I think it's helpful. I just don't know. I 0:12:53.600 --> 0:12:56.959 don't think it's a clam dunk Jule and Altria are 0:12:57.040 --> 0:13:00.160 trying to shift the blame to the state of Minnesota. 0:13:00.480 --> 0:13:04.080 Minnesota got billions of dollars from tobacco settlements over the 0:13:04.160 --> 0:13:09.080 last decade, but spent less than one percent on prevention efforts, 0:13:09.520 --> 0:13:13.520 instead using the funds to bankroll unrelated products like the 0:13:13.559 --> 0:13:18.320 Minnesota Vikings football stadium. This is a really interesting argument. 0:13:18.480 --> 0:13:21.439 If you go back to nineteen ninety eight, the various 0:13:21.520 --> 0:13:25.400 states one something like two hundred and five two hundred 0:13:25.440 --> 0:13:27.880 and six billion dollars. I think the state of Minnesota 0:13:27.920 --> 0:13:32.400 alone got over six billion dollars in the tobacco settlements 0:13:32.400 --> 0:13:35.320 with all the big tobacco companies, including the company that 0:13:35.559 --> 0:13:38.559 now Altria right it used to be Philip Morris. And 0:13:38.640 --> 0:13:43.079 so there was like enormous opportunity for not only Minnesota, 0:13:43.080 --> 0:13:45.760 but for all of the states to use that money 0:13:45.840 --> 0:13:50.000 to really create better public health programs, better education programs 0:13:50.040 --> 0:13:53.280 to reduce smoking and educate people about the dangers of smoking, 0:13:53.640 --> 0:13:57.000 and intervene in trends like this. And I think that 0:13:57.160 --> 0:14:00.440 Jewel and Altria have a good taste to make that 0:14:00.600 --> 0:14:04.000 not only Minnesota, but literally every state in the country 0:14:04.400 --> 0:14:06.680 basically wasted that opportunity. When we look at what they 0:14:06.720 --> 0:14:09.520 did with the money. They mostly plugged holes and stay 0:14:09.559 --> 0:14:12.439 budgets and just considered it's sort of a flush fund 0:14:12.840 --> 0:14:15.240 to be used whenever there was a financial needs. It's 0:14:15.280 --> 0:14:18.480 hard to find any examples in Minnesota. There's no exception 0:14:18.920 --> 0:14:22.520 of a state that really used the money comprehensively for 0:14:22.640 --> 0:14:25.760 effective public health related to the danger of smoking. Do 0:14:26.000 --> 0:14:28.720 Altria and Jewel have the same defense or are they 0:14:28.760 --> 0:14:32.320 pointing fingers. Jewel is the main target here to fuel 0:14:32.400 --> 0:14:35.400 Labs is the company that developed this and marketed this, 0:14:35.480 --> 0:14:37.480 and they are a victim of their own success with 0:14:37.600 --> 0:14:40.160 all of the flavors that they came out with, mango 0:14:40.200 --> 0:14:43.320 and other things that really appeals to kids. Altria has 0:14:43.360 --> 0:14:46.360 the misfortune of having been a major investor, I think 0:14:46.400 --> 0:14:49.400 something like twelve to thirteen billion dollar investment in Jewel. 0:14:49.520 --> 0:14:52.280 But it's not to me at all clear why Altria 0:14:52.520 --> 0:14:56.880 is sitting side by side defending this case with Jewel. Frankly, 0:14:56.920 --> 0:14:59.360 it looks like they are there because they are such 0:14:59.400 --> 0:15:02.320 a big player in the overall tobacco industry and not 0:15:02.400 --> 0:15:05.520 because they were so singularly attached to this product. In fact, 0:15:05.920 --> 0:15:09.920 Altria has completely divested itself of its position and Jewel, 0:15:09.960 --> 0:15:13.280 which I think was never more than a small minority percentage. Ironically, 0:15:13.240 --> 0:15:16.560 Altria is actually invested in a competing product, and Joy, 0:15:16.920 --> 0:15:20.000 which is competing with Jewels, and so I'm not clear 0:15:20.360 --> 0:15:22.800 if their appearance here is more about optics and having 0:15:23.240 --> 0:15:25.560 you know, the biggest tobacco company in the country so 0:15:25.640 --> 0:15:28.520 much as related to their actual activity in the state 0:15:28.520 --> 0:15:32.480 of Minnesota related to eastigs. Also for the deep pocket, yeah, 0:15:32.480 --> 0:15:34.840 no questions. As a parent of children, I share the 0:15:34.880 --> 0:15:40.200 concern about the effective, dangerously effective marketing of East cigarettes. 0:15:40.240 --> 0:15:43.480 But it does seem that Altria is at the table 0:15:43.880 --> 0:15:46.880 mostly not only for their size and disability, but also 0:15:47.240 --> 0:15:49.560 for the potential resources that they can add to the 0:15:49.560 --> 0:15:52.320 pool of funds. So I agree with your comment about 0:15:52.360 --> 0:15:54.320 them being a deep pocket here. As far as if 0:15:54.320 --> 0:15:57.800 the jury thinks the state has some responsibility here, is 0:15:57.800 --> 0:16:02.240 this a case where the jury can allocate damages. Yeah, absolutely, 0:16:02.240 --> 0:16:06.400 the jury does have the ability to attribute comparative amounts 0:16:06.640 --> 0:16:10.400 and to assess responsibilities. So yeah, it's a tricky case 0:16:10.480 --> 0:16:13.920 for Altria because it obviously the goal is to show 0:16:13.960 --> 0:16:16.600 that this is a bigger, more complex problem that isn't 0:16:16.600 --> 0:16:19.280 specifically tied to this, but also to try to minimize 0:16:19.320 --> 0:16:22.560 its share of any damages that are awarded. So what's 0:16:22.600 --> 0:16:25.880 the question the jury will have to answer. I mean, 0:16:25.880 --> 0:16:32.080 the question is really whether Jewel engaged in deceptive marketing 0:16:32.120 --> 0:16:36.680 practices that targeted Minnesota youth. And so that's really the 0:16:36.760 --> 0:16:38.960 claim that's being made, essentially, that there was some kind 0:16:39.000 --> 0:16:43.280 of fraudulent practice, you know, that there was actually intention 0:16:43.880 --> 0:16:49.040 to lull kids into taking up vaping in the marketing 0:16:49.040 --> 0:16:51.040 that they use, rather than this being a case of 0:16:51.160 --> 0:16:54.720 kids being marketing you know that was intended for adults, 0:16:54.720 --> 0:16:58.680 that in fact, the entire strategy of Jewel was to 0:16:59.040 --> 0:17:02.080 hook a hold new generation of young kids on vaping. 0:17:02.680 --> 0:17:07.040 Jewel has faced thousands of lawsuits across the nation, but 0:17:07.200 --> 0:17:11.080 most have settled, and it said that Minnesota had rejected 0:17:11.080 --> 0:17:14.800 settlement offers similar to those reached with other states, which 0:17:14.840 --> 0:17:18.120 provided quote hundreds of millions of dollars to further combat 0:17:18.240 --> 0:17:23.080 underage use and developed cessation programs in those states. So 0:17:23.400 --> 0:17:26.000 is this for the good of Minnesota or is this, 0:17:26.280 --> 0:17:29.600 you know, for making a name and making a statement 0:17:29.720 --> 0:17:32.400 about these products. I'm just trying to figure out why 0:17:32.400 --> 0:17:36.280 they wouldn't settle. Yeah, it definitely is an aggressive strategy 0:17:36.359 --> 0:17:38.399 here on the part of the state of Minnesota. It 0:17:38.480 --> 0:17:42.280 seems interesting that the state Attorney General, Keith Ellison is 0:17:42.280 --> 0:17:46.160 actually taking the lead in trying this case. He's certainly 0:17:46.200 --> 0:17:50.720 someone who has a colorful political history nationally, and I 0:17:50.760 --> 0:17:54.440 do think there's certainly a question of whether there's some grandstanding, 0:17:54.840 --> 0:17:56.520 you know, whether it's to create a name for him, 0:17:56.640 --> 0:17:59.199 or just to make a statement by taking such an 0:17:59.240 --> 0:18:02.080 aggressive position on this case rather than following the path 0:18:02.200 --> 0:18:05.640 of other states and pursuing a quicker settlement. The State 0:18:05.720 --> 0:18:09.440 of Minnesota hasn't set a number for damages, but Allison 0:18:09.520 --> 0:18:12.680 said that it could be in the ballpark with Minnesota's 0:18:12.720 --> 0:18:16.400 landmarks seven point one billion dollars settlement with the tobacco 0:18:16.440 --> 0:18:20.560 industry in nineteen ninety eight. But wasn't that a bigger 0:18:20.640 --> 0:18:23.240 case the case with the tobacco industry and didn't go 0:18:23.280 --> 0:18:27.800 back decades. It's really hard to imagine how the problem 0:18:27.800 --> 0:18:31.359 of jewel could be taken as equivalent as the nineteen 0:18:31.400 --> 0:18:34.959 ninety eight tobacco settlement, which was really addressing decades and 0:18:35.080 --> 0:18:38.720 decades of actually deceptive marketing where the tobacco industry knew 0:18:38.960 --> 0:18:43.600 how dangerous smoking was to American Health and clearly did 0:18:43.600 --> 0:18:46.360 everything it could to block that information from coming out 0:18:46.480 --> 0:18:48.720 and to keep pushing a product that it knew was deadly. 0:18:48.800 --> 0:18:51.920 So the conduct here happened in a much shorter period 0:18:52.000 --> 0:18:54.040 of time. I don't think Jewel even entered the market 0:18:54.119 --> 0:18:56.640 until twenty sixteen, and I think the main period we're 0:18:56.640 --> 0:18:59.480 focusing on is like twenty sixteen to twenty nineteen. So 0:18:59.520 --> 0:19:02.240 it seems like this should be ultimately a drop in 0:19:02.280 --> 0:19:06.280 the bucket compared to the broader tobacco settlement. And again, 0:19:06.400 --> 0:19:08.600 it does to me raise questions why it's turney General 0:19:08.600 --> 0:19:11.800 Ellison is taking such an aggressive position here. Not to 0:19:11.840 --> 0:19:14.000 say this this isn't a problem, but to suggest that 0:19:14.040 --> 0:19:16.399 it's on par with the whole tobacco crisis seems a 0:19:16.400 --> 0:19:19.760 bit much. If the state of Minnesota did win here, 0:19:20.400 --> 0:19:25.080 would it help other states to get leverage to reach settlements? 0:19:25.200 --> 0:19:28.520 I mean, how would it affect states outside of Minnesota 0:19:28.640 --> 0:19:31.640 or you know, the general population outside of Minnesota. I mean, 0:19:31.680 --> 0:19:36.120 I think if a jury is receptive and gives Minnesota 0:19:36.200 --> 0:19:39.639 give Journey General Ellison a multibillion dollars or even a 0:19:39.680 --> 0:19:44.360 billion dollars settlement here, I think it will embolden other states, 0:19:44.359 --> 0:19:47.920 and it will concern Jewels and potentially Altria and sort 0:19:47.960 --> 0:19:50.680 of increase the numbers that are being paid out, which 0:19:50.680 --> 0:19:53.880 are already significant and in the hundreds of millions dollars. 0:19:54.000 --> 0:19:56.080 So I do think that this case in a sense 0:19:56.240 --> 0:19:59.680 will either strengthen or weaken the assessments on both sides 0:19:59.680 --> 0:20:02.200 of what this case is worse and what this harm 0:20:02.400 --> 0:20:04.080 is worse than what it's going to take to settle 0:20:04.080 --> 0:20:07.040 these cases. So there is exposure here. If Minnesota wins 0:20:07.040 --> 0:20:09.359 this case, there's going to be more states that are 0:20:09.359 --> 0:20:12.680 willing to be more aggressive and push for more, which 0:20:12.720 --> 0:20:15.439 is going to be obviously bad for Jewel and Altria. 0:20:15.760 --> 0:20:20.000 And if Minnesota loses the case, will Jewel in Altria 0:20:20.119 --> 0:20:23.960 be hesitant to settle these cases? Again? To me, it's 0:20:24.000 --> 0:20:25.560 more like I think of it a little bit like 0:20:25.600 --> 0:20:28.680 a stock, right, So if Minnesota loses this case, then 0:20:28.760 --> 0:20:31.760 the value of the claims that other states and jurisdictions 0:20:31.760 --> 0:20:35.119 could make against Jewel against Altria will be a little 0:20:35.119 --> 0:20:38.919 bit lower. And Jewels already shown a desire to settle 0:20:38.920 --> 0:20:41.360 these cases. I just think it may be slightly more 0:20:41.359 --> 0:20:44.239 aggressive and settle for a little bit less, But at 0:20:44.280 --> 0:20:45.920 the end of the day, it seems to me that 0:20:46.080 --> 0:20:50.040 these companies have set aside huge reserves, you know, to 0:20:50.119 --> 0:20:53.160 pay off planes here, not because they agree that there's 0:20:53.200 --> 0:20:56.840 any deceptive marketing, but simply because it's not a popular 0:20:56.880 --> 0:21:01.320 position to be defending marketing that clearly impacted kids and 0:21:01.440 --> 0:21:04.640 drove more kids to vaping. And these companies just need 0:21:04.680 --> 0:21:06.280 to do what they can to get rid of these 0:21:06.280 --> 0:21:09.240 cases as efficiently as they can. So I think this 0:21:09.320 --> 0:21:11.239 case is going to be significant one way or the other. 0:21:11.280 --> 0:21:13.919 It's going to make these cases around the country a 0:21:13.960 --> 0:21:16.160 little bit more valuable or a little bit less valuable. 0:21:16.400 --> 0:21:20.199 Critics of the public nuisance theory say that it allows 0:21:20.280 --> 0:21:25.280 executive officers like state attorneys general to improperly step in 0:21:25.560 --> 0:21:30.320 and replace the role of administrative agencies and lawmakers, which 0:21:30.320 --> 0:21:33.520 should be the ones regulating the industry. Do you agree 0:21:33.560 --> 0:21:36.440 with that or disagree? I mean, I'm not a fan 0:21:36.800 --> 0:21:39.879 of the expansion of public nuisance theory. I think that 0:21:40.200 --> 0:21:43.080 it played a very valuable role in America when it 0:21:43.080 --> 0:21:47.240 came to some of the terrible environmental harms that American 0:21:47.280 --> 0:21:50.159 industry imposed on different parts of the country where we 0:21:50.200 --> 0:21:54.639 saw long term, real environmental costs that were imposed, you know, 0:21:54.720 --> 0:21:57.520 when toxins were spread in particular parts of the country. 0:21:57.560 --> 0:22:02.440 I think these kind of social behavior oriented public nuisance cases, 0:22:02.680 --> 0:22:06.600 as in the case of opioids and here, are really questionable. 0:22:06.960 --> 0:22:09.040 You can see why it's very exciting to states and 0:22:09.119 --> 0:22:11.760 two executive leaders. But I agree that the questions of 0:22:11.800 --> 0:22:14.480 the long term harm and long term responsibility are probably 0:22:14.640 --> 0:22:17.320 going to be addressed more accurately and with a little 0:22:17.320 --> 0:22:21.200 bit less passion and uncertainty in other places than putting 0:22:21.200 --> 0:22:23.879 them before juries. So I agree with that criticism. The 0:22:23.920 --> 0:22:27.480 trials expected to last three weeks, so we'll find out 0:22:27.520 --> 0:22:30.600 just how the public nusance theory works here. You know, 0:22:30.800 --> 0:22:33.199 this case makes me wonder what's the next issue that 0:22:33.200 --> 0:22:38.440 we're going to see where Americans engaging in dangerous, unhealthy behavior. 0:22:38.560 --> 0:22:41.040 It's going to lead to a public nusance theory. I'm 0:22:41.040 --> 0:22:43.280 still waiting for the sugar industry, you know, for the 0:22:43.320 --> 0:22:46.800 first public nuisance case food. I don't know where it's 0:22:46.800 --> 0:22:48.880 going to be. But I think this kind of reflects 0:22:48.880 --> 0:22:51.320 the trend in American society where, you know, on the 0:22:51.359 --> 0:22:53.000 one they had this good to In my opinion, that 0:22:53.040 --> 0:22:57.560 we're thinking about where the dangers two consumers are, you know. 0:22:57.600 --> 0:22:59.760 On the other hand, it's not always easy to get 0:23:00.440 --> 0:23:04.359 exactly who's to blame, Thanks Harry. That's healthcare attorney Harry 0:23:04.400 --> 0:23:10.600 Nelson of Nelson Hardeman Madison Square Garden Entertainment can band 0:23:10.760 --> 0:23:15.320 lawyers suing the company from attending concerts and theatrical performances 0:23:15.359 --> 0:23:18.840 at its venues, even if they have valid tickets. That's 0:23:18.840 --> 0:23:22.320