WEBVTT - History Is Made as Ketanji Brown Jackson Is Confirmed 0:00:03.200 --> 0:00:07.960 This is Bloombird Law with June Brussel from Bloomberg Radio. 0:00:09.080 --> 0:00:13.800 This is a wonderful day, a joyous day, and inspiring 0:00:13.920 --> 0:00:18.520 day for the Senate, for the Supreme Court, and for 0:00:18.600 --> 0:00:22.520 the United States of America. Today we are here to 0:00:22.920 --> 0:00:27.720 to vote to confirm Katangi Brown Jackson as the one 0:00:27.840 --> 0:00:33.080 hundred sixteenth Justice of the United States Supreme Court. History 0:00:33.200 --> 0:00:37.120 was made this afternoon as Katanji Brown Jackson was confirmed 0:00:37.120 --> 0:00:40.240 to become the first black woman in two hundred thirty 0:00:40.240 --> 0:00:43.760 two years to sit on the Supreme Court. Three Republican 0:00:43.840 --> 0:00:48.320 senators joined the Democrats in voting for Jackson. On this vote, 0:00:48.800 --> 0:00:53.639 the a's A fifty three the names, and this nomination 0:00:53.760 --> 0:01:01.640 is confirmed. Joining me is Alatoon Day Johnson, a professor 0:01:01.640 --> 0:01:06.959 at Columbia Law School. What does this historic confirmation signify? 0:01:07.319 --> 0:01:10.959 This is a historic confirmation, and in a number of ways. 0:01:11.200 --> 0:01:14.880 Clearly it's important to have the first black woman on 0:01:14.920 --> 0:01:18.160 the Supreme Court, both for how we think about the 0:01:18.200 --> 0:01:21.400 Court as an institution, the legitimacy of the institution, and 0:01:21.520 --> 0:01:25.480 just as a sign that this is a pathway that's 0:01:25.520 --> 0:01:30.000 available to everyone in America, even a young African American 0:01:30.040 --> 0:01:34.880 girl who's just a generation removed from formal segregation. That 0:01:34.959 --> 0:01:38.520 we could have a democracy in which the pathway to 0:01:38.520 --> 0:01:40.920 the Supreme Court is open to people like Katangi Brown 0:01:41.000 --> 0:01:44.960 Jackson and others like her is really important. In some respect, 0:01:45.080 --> 0:01:49.360 she has a background and experience typical of Supreme Court justices. 0:01:49.840 --> 0:01:53.240 In other respects different, Yeah, I think it's really important 0:01:53.240 --> 0:01:55.960 to focus on her as an individual and what she 0:01:56.000 --> 0:01:57.960 brings to the Court. And one of the things I 0:01:58.080 --> 0:02:01.520 was struck by from the moment she was nominated was 0:02:01.720 --> 0:02:05.360 a range of experience. Um So she has some of 0:02:05.360 --> 0:02:07.840 those aspects that are typical of a lot of nominees, 0:02:07.880 --> 0:02:11.000 and she went to what is considered a very top 0:02:11.120 --> 0:02:14.640 law school and elite law school. She herself clerked on 0:02:14.680 --> 0:02:17.560 the Supreme Court. She clerked for Justice Bryer, and we 0:02:17.639 --> 0:02:20.959 see a lot of the justices who have that kind 0:02:21.000 --> 0:02:24.960 of background. She also has appellate court experience. I mean, 0:02:25.040 --> 0:02:28.079 she's coming from the DC circuit. But in other ways 0:02:28.400 --> 0:02:31.679 you see a breadth of experience that really is uncommon 0:02:31.919 --> 0:02:34.840 for a Supreme Court justice. And the things that really 0:02:35.400 --> 0:02:40.040 stand out for me are her experience as a trial judge, 0:02:40.320 --> 0:02:42.799 which she has been for most of her judicial career. 0:02:42.880 --> 0:02:45.800 She's only spent a short time actually as an appellate judge, 0:02:45.840 --> 0:02:48.400 so for nine years she was a trial judge. And 0:02:48.440 --> 0:02:53.119 then also her experience in trial practice, So a lot 0:02:53.200 --> 0:02:56.800 of judges and justices have experience with a pellet practice, 0:02:56.800 --> 0:03:00.600 but actually representing clients in trial settings that he stands out, 0:03:00.639 --> 0:03:03.160 so that breadth of experience. And then she also has 0:03:03.200 --> 0:03:06.760 experience in criminal law and specifically as a public defender. 0:03:06.880 --> 0:03:09.120 And there was much discussion as this of course in 0:03:09.160 --> 0:03:13.000 her confirmation hearings, and you saw a real division as 0:03:13.000 --> 0:03:14.960 to whether or not this was a strength or not. 0:03:15.680 --> 0:03:18.120 I really saw it going in. And then also and 0:03:18.160 --> 0:03:20.680 how she explained it as a key strength. So she 0:03:20.760 --> 0:03:24.440 will bring that knowledge of criminal law and criminal procedure, 0:03:24.760 --> 0:03:27.320 but not just sort of an abstract I taught this knowledge, 0:03:27.320 --> 0:03:30.040 but how does this actually play out in our criminal 0:03:30.160 --> 0:03:34.400 justice institutions. Her experience on the Sentencing Commission means that 0:03:34.480 --> 0:03:39.720 she's really grappled with how the laws around sentencing effect 0:03:39.960 --> 0:03:42.960 ordinary people and some of the trade offs in sort 0:03:43.000 --> 0:03:47.240 of designing sentences. She's going to have that understanding. Another 0:03:47.240 --> 0:03:49.800 thing that really struck out for me, and this is 0:03:49.960 --> 0:03:53.880 related to m Sentencing Commission work is just the extent 0:03:53.960 --> 0:03:57.360 to which she had worked in settings that were bipartisan, 0:03:57.720 --> 0:04:01.680 and that's something that really came across the Sentencing Commission work. 0:04:01.680 --> 0:04:04.320 And there are people who testify to this in the 0:04:04.360 --> 0:04:07.320 confirmation hearings where they talked about and the fact that 0:04:07.640 --> 0:04:11.680 she is seen as someone who believes in bridging differences 0:04:11.720 --> 0:04:14.680 and she's a consensus builder. So hopefully those skills will 0:04:14.720 --> 0:04:18.960 help her on the Supreme Court to explained because people say, well, 0:04:19.000 --> 0:04:22.480 she brings this experience, but will she really be explaining 0:04:22.520 --> 0:04:26.760 to the other justices what criminal defense laws like or 0:04:27.000 --> 0:04:32.000 or sentencing someone. Yeah, I mean it definitely um happens. 0:04:32.080 --> 0:04:35.680 I mean, you see how the kinds of questions that 0:04:35.800 --> 0:04:39.960 someone asks that oral argument can really shape the information 0:04:40.720 --> 0:04:44.839 um that justices are exposed to and their understanding of 0:04:44.839 --> 0:04:49.560 the implications of different legals. So um, maybe that they 0:04:49.600 --> 0:04:52.279 she pursues a line of questioning UM. A lot of 0:04:52.320 --> 0:04:56.159 times you may notice that when Supreme Court justices ask questions, 0:04:56.160 --> 0:04:59.360 in part their audience is the person who they're asking 0:04:59.400 --> 0:05:01.520 the question of right the litigant um in front of 0:05:01.680 --> 0:05:04.000 the lawyer who's making the argument. But in part they're 0:05:04.040 --> 0:05:08.400 talking to each other through those questions, and so I 0:05:08.440 --> 0:05:13.560 think justices often learn UM a lot through that questioning Yeah, 0:05:13.680 --> 0:05:16.800 you're right. They don't always UM go and then chat 0:05:16.839 --> 0:05:20.480 with each other afterwards. UM. And so there isn't that 0:05:20.520 --> 0:05:23.800 type of dialogue typically, but in the history of the 0:05:23.800 --> 0:05:27.640 Supreme Court that has happened. I mean, Justice Senator day 0:05:27.680 --> 0:05:31.239 O'Connor always talks about what she learned about criminal justice 0:05:31.360 --> 0:05:34.800 and about death penalty issues from Thurgood Marshall, that she 0:05:35.080 --> 0:05:38.080 learned about the effect of these laws in real life. 0:05:38.160 --> 0:05:40.559 He by the way of the last justice who had 0:05:40.600 --> 0:05:44.719 a real public defense background. UM. And so that kind 0:05:44.720 --> 0:05:48.040 of learning can happen. I'm a little skeptical that that's 0:05:48.080 --> 0:05:51.279 going to happen on the Court in the foreseeable future 0:05:51.360 --> 0:05:54.960 because UM, all that we've heard suggests that most of 0:05:54.960 --> 0:05:57.600 the way in which they communicate is through or argument 0:05:58.040 --> 0:06:01.400 and then a little bit UM in the UM a 0:06:01.560 --> 0:06:04.880 conference that they have UM when they are deciding the cases. 0:06:04.920 --> 0:06:08.680 So they're not engaging that back and forth UM. Justices 0:06:08.720 --> 0:06:12.039 also read each other's opinions and sometimes they change their mind. 0:06:12.120 --> 0:06:15.640 There are opinions that sometimes could be assigned to someone 0:06:15.680 --> 0:06:19.200 that are originally in dissent that can turn into a majority. UM. 0:06:19.279 --> 0:06:23.520 So justices can change their mind. Now most of of 0:06:23.600 --> 0:06:25.880 us think, well, how could this ever happen when we 0:06:25.960 --> 0:06:29.559 know that their views are so set on a range 0:06:29.560 --> 0:06:33.360 of issues. And that's because I think we as the public, 0:06:33.440 --> 0:06:37.280 we pay attention to many of the high profile issues UM. 0:06:37.320 --> 0:06:43.279 The most high profile issues UM, abortion, UM, affirmative action, UM. 0:06:43.400 --> 0:06:47.280 Maybe I put voting rights on that, some questions around UM, 0:06:47.360 --> 0:06:50.599 the administrative state, you know, the power of regulation in 0:06:50.600 --> 0:06:53.080 the area of environment. I mean, those are maybe high 0:06:53.120 --> 0:06:58.080 salience issues where the justices um their opinions. We might 0:06:58.080 --> 0:07:00.760 already know their approach, and so maybe she shift people 0:07:00.800 --> 0:07:03.360 on that. But there are many other issues that the 0:07:03.400 --> 0:07:07.440 court decides UM, that affect the rules and trial cord, 0:07:07.720 --> 0:07:12.840 that affect UM, criminal defendants UM, and some of those UM, 0:07:12.880 --> 0:07:17.680 there is the opportunity to have alignments UM that are 0:07:17.760 --> 0:07:21.640 unexpected or even for the justices all to agree. She 0:07:21.760 --> 0:07:29.720 went through two days of aggressive bruising questioning, where the 0:07:29.760 --> 0:07:34.280 Republicans attacked her for being soft on crime, a proponent 0:07:34.320 --> 0:07:39.320 of critical race theory representing terrorists. Now, no one ever 0:07:39.400 --> 0:07:43.000 questioned her qualifications to sit on the court. But do 0:07:43.000 --> 0:07:47.360 you think the hearings in any way taint this historic confirmation, 0:07:48.280 --> 0:07:53.040 So I think that it taints the Senate most of all, 0:07:53.480 --> 0:07:57.240 So backing up for a second, going in, this is 0:07:57.440 --> 0:08:02.000 unfortunate because she was confirmed in a bipartisan way for 0:08:02.160 --> 0:08:05.480 the Trial court um she was confirmed, as it has 0:08:05.520 --> 0:08:08.400 been pointed out, for the Sentencing Commission. She was elevated 0:08:08.440 --> 0:08:11.280 after being a trial court judge to the DC Circuit, 0:08:11.560 --> 0:08:15.360 and it wasn't as overwhelmingly bipartisan, but there were Republicans 0:08:15.400 --> 0:08:18.280 who voted for her, so coming in that really there 0:08:18.360 --> 0:08:21.600 was nothing in her record, nothing in her record that 0:08:21.600 --> 0:08:26.880 should have drawn particular opposition. Now, I think that Senators 0:08:26.960 --> 0:08:31.840 should really sharply question potential justices. It's really important. We 0:08:31.880 --> 0:08:34.760 call it, in the constitutional context advice and consent, and 0:08:35.040 --> 0:08:37.280 you want the Senate to play a very vigorous role 0:08:37.320 --> 0:08:41.320 when you're talking about lifetime appointments. That said, going in, 0:08:41.480 --> 0:08:43.880 I'm not sure there's much she could have done to 0:08:43.960 --> 0:08:47.240 win over certain Republicans. And really some of the things 0:08:47.280 --> 0:08:49.200 she was asked about had nothing to do with her. 0:08:49.520 --> 0:08:51.199 They had to do with the idea of a kind 0:08:51.240 --> 0:08:56.000 of liberal constitutionalism that seemed very outdated and didn't have 0:08:56.040 --> 0:08:57.920 anything to do with her record, which is really is 0:08:57.960 --> 0:09:01.679 a very kind of careful, incremental trial court judge. And 0:09:01.720 --> 0:09:03.920 then they asked a series of questions that I put 0:09:03.920 --> 0:09:07.680 on the side of quite inappropriate about things like critical 0:09:07.800 --> 0:09:11.240 race theory, and it felt that just because she was 0:09:11.280 --> 0:09:13.240 a black woman sitting there, she should be able to 0:09:13.280 --> 0:09:16.640 opine on and those were quite offensive. They were shocking 0:09:16.960 --> 0:09:20.600 set of questions about her religion. I felt she was 0:09:20.760 --> 0:09:24.200 incredibly poised through it all. So the short answer is, 0:09:24.280 --> 0:09:26.560 I think it made the Senate look bad. I teach 0:09:26.640 --> 0:09:29.200 my students that advice and consent matters, that the Senate 0:09:29.280 --> 0:09:32.360 is this great, deliberated institution, and it's hard for them 0:09:32.360 --> 0:09:35.280 to take me seriously after seeing some of that. But 0:09:35.559 --> 0:09:38.880 on the flip side, what I heard was she was 0:09:38.960 --> 0:09:43.400 incredibly poised. My respect for her increased through that. And 0:09:43.520 --> 0:09:46.560 so I'm sure the American people will have a mix 0:09:46.600 --> 0:09:49.400 of views on that, because we are a deeply divided country. 0:09:49.400 --> 0:09:52.040 But even some of the polling suggests that there's more 0:09:52.080 --> 0:09:55.400 support for her and more favorable view of her for 0:09:55.480 --> 0:09:58.520 having gone through that process. You know, despite that process, 0:09:58.720 --> 0:10:02.080 Thanks so much for your in sights. That's Professor Alatun 0:10:02.160 --> 0:10:07.000 Day Johnson of Columbia Law School. A judge has denied 0:10:07.040 --> 0:10:10.520 the Lane Maxwell a new trial on sex trafficking charges 0:10:10.920 --> 0:10:14.400 over a juror's failure to disclose during jury selection that 0:10:14.520 --> 0:10:17.920 he was a victim of childhood sex abuse. Judge Allison 0:10:18.040 --> 0:10:21.480 Nathan's ruling ends for now a drama that called into 0:10:21.600 --> 0:10:25.720 question a verdict widely hailed as bringing long delayed justice 0:10:25.760 --> 0:10:29.800 to Epstein's victims. Joining me as former federal prosecutor Robert 0:10:29.840 --> 0:10:33.679 Mentz a partner mcarter in English, Judge Allison Nathan said 0:10:33.720 --> 0:10:37.800 Maxwell's lawyers had failed to satisfy the requirements for granting 0:10:37.840 --> 0:10:40.480 a new trial in a criminal case. What are those 0:10:40.520 --> 0:10:44.520 requirements and why did you think they failed to satisfy them. 0:10:44.720 --> 0:10:49.079 Hearing of the potential jur misconduct after a conviction are rare, 0:10:49.160 --> 0:10:52.040 but they're not unheard of, and it really turns on 0:10:52.120 --> 0:10:56.119 the question of whether the jur misconduct denied and defended 0:10:56.360 --> 0:11:00.280 a completely unbiased jury. So in this case, the sense 0:11:00.360 --> 0:11:02.840 did not need to show that the information was held 0:11:02.880 --> 0:11:05.480 by the juror would have altered the outcome of the verdict, 0:11:05.600 --> 0:11:09.040 only that the juror knowingly lied to enhance their chances 0:11:09.040 --> 0:11:11.880 of getting onto the jury, and so the question before 0:11:11.920 --> 0:11:14.679 the judge at the hearing was whether or not this 0:11:14.800 --> 0:11:18.280 juror had intentionally lied in order to get on the jury, 0:11:18.520 --> 0:11:21.560 and most importantly, whether or not that juror could be 0:11:21.679 --> 0:11:24.400 unbiased and could listen to the evidence and could render 0:11:24.480 --> 0:11:28.880 ultimately a fair and impartial verdict. Nathan disagreed with the 0:11:28.960 --> 0:11:32.960 idea that past victims would not be fair jurors. But 0:11:33.160 --> 0:11:36.680 isn't it obvious that this juror's passed abuse made a 0:11:36.720 --> 0:11:39.480 difference in the case because he said it did. He 0:11:39.559 --> 0:11:44.120 told several media outlets that he raised his childhood abused 0:11:44.240 --> 0:11:48.000 during deliberations to sway other jurors. Yeah, that's a very 0:11:48.040 --> 0:11:52.000 interesting question. And the real issue here is whether or 0:11:52.040 --> 0:11:56.040 not the past history of this juror gave this jur 0:11:56.120 --> 0:11:59.160 an impermissible stake in the outcome of the trial. In 0:11:59.200 --> 0:12:02.840 other words, was a jur an unbiased fact finder or 0:12:02.960 --> 0:12:06.240 was a youur an advocate for a particular cause with 0:12:06.360 --> 0:12:09.400 their own agenda. And that's what the defense argued here. 0:12:09.640 --> 0:12:12.760 But the judge ultimately found that despite the history of 0:12:12.840 --> 0:12:17.240 child sexual abuse that was not disclosed during the jury questionnaire, 0:12:17.280 --> 0:12:20.040 despite the fact that it was clearly asked on that questionnaire, 0:12:20.559 --> 0:12:23.400 that that did not result in an unfair trial for 0:12:23.520 --> 0:12:27.400 miss Maxwell, and the verdict was therefore upheld. Nathan wrote 0:12:27.559 --> 0:12:30.160 that the juror was not biased and would not have 0:12:30.240 --> 0:12:34.040 been stricken for cause even if he's answered every question 0:12:34.080 --> 0:12:37.840 on the questionnaire accurately. She said that whether the defendant 0:12:37.840 --> 0:12:41.440 would have exercised the peremptory strike against this juror had 0:12:41.440 --> 0:12:45.400 he actually disclosed his prior sexual abuse is not an issue. 0:12:45.840 --> 0:12:48.520 Why isn't that an issue. Doesn't the defense have a 0:12:48.640 --> 0:12:53.080 right to exercise peremptory challenges to get a jury they 0:12:53.160 --> 0:12:55.800 believe will be fair. Yeah, I think that really goes 0:12:55.840 --> 0:12:58.160 to the heart of this question. And the judge made 0:12:58.160 --> 0:13:02.679 the point, as you say, simply because a juror is 0:13:02.760 --> 0:13:06.800 themselves a victim of sexual abuse does not preclude them 0:13:06.840 --> 0:13:10.679 from sitting as a juror on the trial about sexual abuse. 0:13:11.120 --> 0:13:13.880 In other words, it is not correct to conclude that 0:13:13.920 --> 0:13:16.880 an individual with a history of sexual abuse can never 0:13:16.920 --> 0:13:19.960 serve as a fair and impartial juror. But in this case, 0:13:20.120 --> 0:13:23.280 what the defense was arguing was not that this juror 0:13:23.280 --> 0:13:27.200 should have immediately been disqualified had he disclosed a history 0:13:27.200 --> 0:13:30.520 of sexual abuse, but that they were denied the opportunity 0:13:30.800 --> 0:13:34.840 to question him about that experience and to determine whether 0:13:34.960 --> 0:13:37.880 or not he really could have been fair and impartial, 0:13:38.200 --> 0:13:40.959 and they could have ultimately decided, as you say, to 0:13:41.440 --> 0:13:44.920 strike him with a peremptory challenge as opposed to a 0:13:45.000 --> 0:13:48.520 challenge for cause, and they were denied that opportunity because 0:13:48.800 --> 0:13:52.559 the juror did not disclose the past history of sexual abuse. 0:13:53.200 --> 0:13:57.880 A retrial would have meant the victims testifying again, the 0:13:58.000 --> 0:14:01.560 state being put to great ex ends with another long trial. 0:14:02.120 --> 0:14:07.400 Were those factors the judge considered in denying a new trial, Well, 0:14:07.400 --> 0:14:10.040 though it's our factors the judge should not have considered. 0:14:10.280 --> 0:14:14.080 The judge really cannot deny the defendant a fair trial here, 0:14:14.200 --> 0:14:17.640 and the issue really simply came down to the question 0:14:17.720 --> 0:14:21.680 of whether or not. After this subsequent post verdict hearing, 0:14:22.000 --> 0:14:25.920 the judge concluded that this juror harbored no bias towards 0:14:25.920 --> 0:14:28.520 the defendant and could have served as a fair and 0:14:28.560 --> 0:14:32.400 impartial juror. That was refinding, and despite the fact that 0:14:32.520 --> 0:14:36.600 the juror did not disclose his past history of sexual abuse, 0:14:36.920 --> 0:14:40.240 the judge concluded that it did not preclude him from 0:14:40.240 --> 0:14:43.440 being fair and impartial and therefore did not change the 0:14:43.520 --> 0:14:46.520 outcome of the verdict. And it's especially interesting in this 0:14:46.600 --> 0:14:50.760 case because this jury gave multiple media interviews saying that 0:14:50.800 --> 0:14:53.320 he was a victim of childhood sexual abuse. That's how 0:14:53.360 --> 0:14:56.200 this whole issue came to light, and he told various 0:14:56.240 --> 0:14:59.960 media outlets that he discussed this experience with fellow juror, 0:15:00.320 --> 0:15:05.520 particularly his difficulty remembering specific details of abuse, just like 0:15:05.600 --> 0:15:09.160 two of the women who testified against Maxwell, he believed, 0:15:09.240 --> 0:15:12.480 He said that his input may have helped other jurors 0:15:12.480 --> 0:15:16.200 believe their testimonies were credible, even if they couldn't recall 0:15:16.360 --> 0:15:20.840 or misremember aspects of the abuse. So the juror acknowledged 0:15:20.880 --> 0:15:25.680 in these post trial interviews that his history of childhood 0:15:25.720 --> 0:15:29.320 sexual abuse was actually discussed during deliberations and may have 0:15:29.440 --> 0:15:32.920 swayed other jurors in reaching their verdict. But that is 0:15:32.960 --> 0:15:36.000 not something that the judge asked the juror about during 0:15:36.000 --> 0:15:39.320 this post trial hearing, and that's because judges are not 0:15:39.400 --> 0:15:42.240 permitted to ask jurors about anything that goes on in 0:15:42.240 --> 0:15:45.800 the jury room about those deliberations, So that area of 0:15:45.800 --> 0:15:49.680 inquiry was not something that came up during the hearing. Instead, 0:15:49.760 --> 0:15:52.640 the judge focused on how it was that this juror 0:15:52.680 --> 0:15:55.080 failed to disclose the fact that he had been a 0:15:55.160 --> 0:15:57.640 victim of childhood sexual abuse, and his answer to that 0:15:57.720 --> 0:16:00.000 was simply that he rushed to answer the jury question 0:16:00.000 --> 0:16:02.000 and there did not pay close attention to it, and 0:16:02.120 --> 0:16:04.760 that it was an honest mistake. The key to that 0:16:04.880 --> 0:16:08.440 finding was the judge believing the juror that it was 0:16:08.480 --> 0:16:11.240 an honest mistake and that it was not an attempt 0:16:11.280 --> 0:16:14.560 by this juror to try to get on the jury 0:16:14.600 --> 0:16:17.360 in order to be an advocate for the victims. This 0:16:17.440 --> 0:16:20.760 is most likely going to be appealed to the second Circuit. 0:16:21.360 --> 0:16:24.640 What are the chances of the second circuit reversing what 0:16:24.720 --> 0:16:29.160 a trial judge decided at the hearing? The judge made 0:16:29.160 --> 0:16:32.640 a credibility finding as to whether or not this curor 0:16:32.760 --> 0:16:36.240 intentionally withheld that information and whether or not that juror 0:16:36.320 --> 0:16:39.040 could have been fair and impartial. And it's difficult for 0:16:39.080 --> 0:16:42.360 the Court of Appeals to turn around and reverse that 0:16:42.520 --> 0:16:45.560 ruling because it is one of credibility and it was 0:16:45.600 --> 0:16:48.920 a trial judge who was there during that testimony. And 0:16:48.960 --> 0:16:50.960 you add on top of that the fact that it 0:16:51.080 --> 0:16:53.960 is rare for judges to order new trials in the 0:16:53.960 --> 0:16:57.000 event of juror misconduct. They're really loath to have to 0:16:57.040 --> 0:17:00.280 do that because it does require trying the case all 0:17:00.280 --> 0:17:03.960 over again, and in this particular case, subjecting the victims 0:17:04.000 --> 0:17:07.679 of sexual abuse to yet another trial, yet another ordeal, 0:17:07.760 --> 0:17:11.440 yet another cross examination by the defense, so that undoubtedly 0:17:11.800 --> 0:17:14.040 somewhere was in the back of the judge's mind in 0:17:14.119 --> 0:17:18.840 making this decision. During misconduct after a conviction is always rare. 0:17:18.880 --> 0:17:21.359 It's not unheard of, but it doesn't happen all the time, 0:17:21.680 --> 0:17:23.960 and the defense likes to jump on these because it's 0:17:24.000 --> 0:17:27.439 an opportunity really to overturn the conviction even before an 0:17:27.440 --> 0:17:30.080 appeal is filed, based on their claim that the ger 0:17:30.160 --> 0:17:34.520 misconduct denied their client a completely unbiased jury. From the 0:17:34.600 --> 0:17:38.840 prosecution standpoint, it is their absolute worst nightmare because it 0:17:38.880 --> 0:17:43.240 has the potential to unravel the conviction almost immediately after 0:17:43.280 --> 0:17:47.280 a lengthy, high stakes trial, which is exactly what happened here. 0:17:47.480 --> 0:17:53.520 Thanks Bob. That's Robert McCarter and English US antitrust chiefs 0:17:53.640 --> 0:17:58.040 voice support for an American crackdown on gatekeeper tech giants. 0:17:58.080 --> 0:18:01.760 Promising stricter deal reviews. This just a week after the 0:18:01.800 --> 0:18:04.679 European Union reached a deal reigning in the likes of 0:18:04.720 --> 0:18:08.400 Google and meta platforms. Joining me is Jennifer Rey Bloomberger 0:18:08.440 --> 0:18:12.879 Intelligence senior litigation analyst. Jen tell us what Jonathan Cantor, 0:18:13.040 --> 0:18:16.520 the head of the Justice Department's antitrust Division, has been 0:18:16.560 --> 0:18:20.200 saying lately about mrger enforcement. So recently, he's been talking 0:18:20.240 --> 0:18:23.520 a lot about how to bolster merger enforcement, you know, 0:18:23.560 --> 0:18:26.399 before these deals are even done, to try to stem 0:18:26.400 --> 0:18:28.760 the tide that some belief has occurred over the last 0:18:28.760 --> 0:18:31.600 ten to twenty years of allowing too many murgers to 0:18:31.640 --> 0:18:35.000 go forward, and many industries that are overly concentrated. And 0:18:35.040 --> 0:18:37.160 he's focused on a lot of different areas, but one 0:18:37.200 --> 0:18:40.040 in particular he talks about a lot is preventing the 0:18:40.080 --> 0:18:42.760 acquisition of a nascent competitor that's kind of a new 0:18:42.800 --> 0:18:45.160 small company that's sort of up and coming and has 0:18:45.240 --> 0:18:47.920 yet to develop, that is bought by a potential rival, 0:18:48.040 --> 0:18:50.320 a company that weigh down the road. If this nascent 0:18:50.320 --> 0:18:54.240 competitor developed, became more vibrant, became you know, a bigger 0:18:54.359 --> 0:18:56.960 rival would be able to challenge the incumbent, and so 0:18:57.240 --> 0:19:01.200 particularly in the big tech platform we're old. What has 0:19:01.280 --> 0:19:03.840 been observed is that over the years, these big tech 0:19:03.880 --> 0:19:06.520 platforms have been able to sort of watch the market 0:19:06.600 --> 0:19:09.399 and watch for these potential threats and still buy them 0:19:09.440 --> 0:19:12.320 up when they're really small, you know, not making great 0:19:12.359 --> 0:19:15.600 revenues or profits, and then gobble them up before they 0:19:15.600 --> 0:19:17.600 can get big and compete with them, or you know, 0:19:17.720 --> 0:19:20.240 take them under their wing and develop them, but still 0:19:20.280 --> 0:19:22.679 as part of their company and not as a rival. 0:19:22.880 --> 0:19:25.720 And so he in particular is focusing on trying to 0:19:25.760 --> 0:19:28.960 do better as a merger enforcer to see these deals, 0:19:29.000 --> 0:19:31.760 to catch these deals, and to try to stop these 0:19:31.760 --> 0:19:34.960 deals before they get closed. How is this different from 0:19:35.000 --> 0:19:39.720 what we heard before with say, Facebook and WhatsApp? Isn't 0:19:39.720 --> 0:19:42.560 it the same message? Yes, it really is generally the 0:19:42.600 --> 0:19:46.359 same message message, But we're just talking about enforcing prior 0:19:46.440 --> 0:19:48.800 to the act. You know, with Facebook, they're going back 0:19:48.840 --> 0:19:52.160 and they're challenging consummated deals that occurred a long time ago, 0:19:52.240 --> 0:19:54.160 and what they're saying is, hey, we made a mistake 0:19:54.200 --> 0:19:57.600 back then when Facebook acquired What's happened when Facebook acquired 0:19:57.600 --> 0:20:00.679 Instagram and we basically cleared it through the agencies, we 0:20:00.720 --> 0:20:03.199 made a mistake and we shouldn't have. These were nascent 0:20:03.200 --> 0:20:05.240 competitors that may have been able to come up and 0:20:05.280 --> 0:20:08.720 be arrival to Facebook. The FTC has suit Facebook now 0:20:08.760 --> 0:20:10.960 to try to unwind these deals. That's going to be 0:20:11.040 --> 0:20:13.640 working its way through court for some time. And what 0:20:13.680 --> 0:20:16.080 the agencies are saying now is we need to stop 0:20:16.080 --> 0:20:18.439 the mergers before they actually close. We need to be 0:20:18.520 --> 0:20:22.439 more vigilant when they're first proposed about understanding that this 0:20:22.600 --> 0:20:26.280 small company that's being bought is a company that could actually, 0:20:26.560 --> 0:20:29.080 if given the time, could flourish and become a rival 0:20:29.280 --> 0:20:31.919 to the company that's buying it. The EU always seems 0:20:31.960 --> 0:20:34.159 to be ahead of the curve on these things. What 0:20:34.240 --> 0:20:37.680 happened in the EU, so in the EU UH there 0:20:37.760 --> 0:20:41.280 was political agreement between the European Commission and the Parliament 0:20:41.440 --> 0:20:45.320 on new legislation called the Digital Markets Act. It's actually 0:20:45.359 --> 0:20:48.000 quite similar to legislation that's being considered here in the 0:20:48.080 --> 0:20:51.320 United States as well. But what that legislation is intended 0:20:51.359 --> 0:20:55.760 to do is create a more fair playing field for 0:20:55.920 --> 0:20:58.960 digital platforms and smaller companies that work with them or 0:20:59.040 --> 0:21:02.159 may compete with them. And what it does generally is 0:21:02.200 --> 0:21:07.359 prohibit self preferencing conduct by the platforms, for instance, using 0:21:07.400 --> 0:21:09.479 the data of a company you compete with but that 0:21:09.560 --> 0:21:12.920 also relies on you as a digital platform to benefit 0:21:12.960 --> 0:21:16.240 your own products and services, or let's say, in search results, 0:21:16.400 --> 0:21:18.640 pushing your own products up to the top of search 0:21:18.680 --> 0:21:23.160 results if it's not warranted or merited. Also prohibit certain 0:21:23.240 --> 0:21:26.120 kinds of discrimination, for instance, of the company is using 0:21:26.200 --> 0:21:28.400 some of your products but not all of your products, 0:21:28.440 --> 0:21:31.000 you're you're giving them a harder time or favoring the 0:21:31.040 --> 0:21:33.919 companies that actually do use your full range of products. 0:21:33.960 --> 0:21:37.879 And also required certain amount of interoperability between companies and 0:21:37.880 --> 0:21:41.320 their rivals and other third parties. So that law moved 0:21:41.440 --> 0:21:44.399 much closer to actually being enacted, and it actually looks 0:21:44.440 --> 0:21:47.359 like it might be so some of these big tech platforms, 0:21:47.359 --> 0:21:49.520 because right now it really only covers a handful of 0:21:49.520 --> 0:21:52.280 the really big digital platforms, may actually have to come 0:21:52.280 --> 0:21:55.760 in compliance with this law. Sometime in two thousand twenty three, 0:21:56.080 --> 0:21:58.680 maybe early two thousand twenty four, you said, the US 0:21:58.720 --> 0:22:01.800 has a similar bill. How similar is it? You know, 0:22:01.880 --> 0:22:04.639 it's it's quite similar. It's called the American Innovation and 0:22:04.760 --> 0:22:07.240 Choice Online Act. And now it's a little farther away. 0:22:07.280 --> 0:22:09.480 You know, we obviously in the United States, we have 0:22:09.560 --> 0:22:13.240 a different process um and you need bipartisan backing really 0:22:13.240 --> 0:22:16.760 for any bill to today to become enacted and become law. 0:22:17.080 --> 0:22:19.359 So we're a little bit farther behind. But this bill 0:22:19.440 --> 0:22:23.119 actually has been voted through the Senate Judiciary Committee and 0:22:23.160 --> 0:22:26.959 has pretty strong bipartisan backing, very similar to the Digital 0:22:27.000 --> 0:22:30.520 Markets Act. It also would ban self preferencing by big 0:22:30.560 --> 0:22:35.160 tech platforms. Right now, it really only covers Amazon, Apple, Facebook, Google, 0:22:35.200 --> 0:22:38.000 and maybe Microsoft that's a little bit unclear. Has a 0:22:38.000 --> 0:22:40.960 few affirmative defenses for certain kind of conduct, but really 0:22:41.040 --> 0:22:44.400 very limited. I believe that it does have some prospects, 0:22:44.440 --> 0:22:47.919 but I don't necessarily think as it's written today it 0:22:48.000 --> 0:22:50.560 could actually get through a floor vote in the Senate 0:22:50.600 --> 0:22:53.040 and even in the House and become law. In the 0:22:53.080 --> 0:22:55.280 committee it was sixteen to six in the votes. It 0:22:55.359 --> 0:22:58.520 was all Democrats and then some Republicans, but many of 0:22:58.520 --> 0:23:01.359 the yes votes were sort of contingent. Yes is that 0:23:01.400 --> 0:23:03.080 we want to keep working on it. We think it 0:23:03.119 --> 0:23:06.159 needs improvement or change before we'd actually vote yes on 0:23:06.200 --> 0:23:08.720 the floor, So it means it's still developing and changing 0:23:08.720 --> 0:23:10.520 and so we're going to have to see, you know, 0:23:10.680 --> 0:23:14.080 where that comes out before we understand how strong it 0:23:14.160 --> 0:23:16.200 is and if it's really as tough as the Digital 0:23:16.200 --> 0:23:19.960 Markets Act is. We heard that under the Biden administration, 0:23:20.000 --> 0:23:23.760