Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 1: I wasn't sure that this day would ever come, and
Speaker 1: I just feel so grateful that the jury believed us
Speaker 1: and sent a strong message that perpetrators of sexual abuse
Speaker 1: and exploitation will be held accountable, no matter how much
Speaker 1: power and privilege that they have. That was Annie Farmer
Speaker 1: a little more than a week ago after a jury
Speaker 1: found the Lane Maxwell guilty of engaging in a ten
Speaker 1: year sex trafficking scheme with Jeffrey Epstein. But now the
Speaker 1: verdict that was hailed as long delayed justice for the
Speaker 1: victims is in jeopardy. In newspaper interviews, a juror said
Speaker 1: that during the jury deliberations, he revealed that he had
Speaker 1: been the victim of sexual abuse as a child, and
Speaker 1: that his story helps sway other jurors who questioned the
Speaker 1: credibility of some of Maxwell's accusers. Than a second juror
Speaker 1: made a similar disclosure, joining me as former federal prosecutor
Speaker 1: Jessica Ralph, a professor at Cardozo Law School. Jessica explain
Speaker 1: why the revelations by these jurors are leading the defense
Speaker 1: to ask for a new trial. A descendant is entitled
Speaker 1: to a trial by a jury that is fair and impartial.
Speaker 1: That is a constitutional guarantee. A defendant is not entitled
Speaker 1: to a perfect trial, but at a minimum, to a
Speaker 1: trial by a jury that will decide the case based
Speaker 1: on the evidence presented in court and not influenced by
Speaker 1: any bias. And so the problem that has been raised
Speaker 1: by these recent revelations by two jurors is the concern
Speaker 1: that they may have harbored a bias against Maxwell based
Speaker 1: on their own prior experiences as victims of sexual abuse.
Speaker 1: And so what the court is going to be trying
Speaker 1: to determine is whether, essentially these jurors should not have
Speaker 1: been seated because of those prior experiences. Clearly, the question
Speaker 1: in the air that the jurors had to fill out
Speaker 1: asks have you are a friend or a family member
Speaker 1: ever been the victim of sexual harassment, sexual abuse or
Speaker 1: sexual assault? So was their misrepresentation here by either juror Well,
Speaker 1: there are a couple of things we still don't know.
Speaker 1: So we don't know how he answered that question on
Speaker 1: his questionnaire because it's under steel. So the lawyers may know,
Speaker 1: but the general public doesn't know yet how In fact,
Speaker 1: he answered that question. It's possible that he answered the
Speaker 1: question accurately and did disclose that he had prior experience
Speaker 1: of abuse, and that the lawyers either didn't catch it
Speaker 1: or failed to follow up on it, either deliberately or inadvertent.
Speaker 1: Unlikely they would have deliberately failed to follow up on it,
Speaker 1: but it is possible that they missed his answer. So
Speaker 1: the first order of business, I imagine for the parties
Speaker 1: right now is going to be finding his questionnaire and
Speaker 1: seeing how, in fact he answered it. And it seems
Speaker 1: unlikely that he answered it in a way that disclosed
Speaker 1: the abuse, because if he had, it is likely that
Speaker 1: the attorneys would have asked follow up questions about it.
Speaker 1: And according to the reporting, the transcript of the vardier
Speaker 1: does not reveal any follow up questioning of this particular
Speaker 1: juror on that issue. So that's suggest that he did
Speaker 1: not disclose it on his questionnaire, or that he did
Speaker 1: disclose it but the lawyers didn't catch it. But the
Speaker 1: first order of business is going to be determining how
Speaker 1: he answered that question on the questionnaire, and that's important
Speaker 1: for the next step of the inquiry because the court
Speaker 1: is going to inquire into his possible motives for not
Speaker 1: disclosing it, assuming for present purposes that he did not
Speaker 1: disclose it. If the court were to determine that he
Speaker 1: did not disclose it deliberately in order to get on
Speaker 1: the jury, then that would be more indicative of bias.
Speaker 1: Then if he, as he has suggested, perhaps inadvertently to
Speaker 1: disclose it because he was rushing through the questionnaire. And
Speaker 1: there are cases where courts have talked about the significance
Speaker 1: of a juror's motivations for failing to disclose information that
Speaker 1: seems relevant to determining bias, because if it seems that
Speaker 1: the juror was determined or trying to get onto the jury,
Speaker 1: that is often indicative in the courts of view of
Speaker 1: harboring some bias and wanting to get onto the jury
Speaker 1: in order to render a verdict against the defendant. Will
Speaker 1: the judge look into what happened in the jury room.
Speaker 1: That's one of the more interesting aspects of this new
Speaker 1: turn in the case, which is that although the jurors
Speaker 1: has suggested in their accounts to the media that they
Speaker 1: brought their experiences into the jury room with them and
Speaker 1: used them to persuade other jurors who may have been
Speaker 1: initially skeptical of the victims witnesses credibility. The judge is
Speaker 1: not going to consider testimony or other evidence about the
Speaker 1: jury deliberation in making her decision about whether or not
Speaker 1: to grant a new trial. That's because there's a federal
Speaker 1: rule of evidence that expressly prohibits a judge from considering
Speaker 1: testimony or an affidavit from a juror about conduct or
Speaker 1: statements that occurred during the jury's deliberation. That's a rule
Speaker 1: of long standing precedent um, and it's designed to protect
Speaker 1: the privacy of jury deliberations. The concern is that if
Speaker 1: jurors are not assured of the privacy of their deliberation,
Speaker 1: that they will be less candid. Courts have been willing
Speaker 1: to accept the fact that this rule may result in
Speaker 1: occasional injustice, but they have said that they do not
Speaker 1: think that the jury system could survive efforts to perfect it.
Speaker 1: In this regard. There are a few narrow exceptions to
Speaker 1: that rule. For example, if a juror were to come
Speaker 1: forward and say that a juror was offered a bribe
Speaker 1: over threatened to influence their verdict, the court would hear
Speaker 1: testimony from a about that. The court also would hear
Speaker 1: testimony from jurors about their having been exposed to extraneous
Speaker 1: extrajudicial publicity, for example, in newspaper account about the case.
Speaker 1: But other than those narrow exceptions, which involve extraneous external
Speaker 1: information being brought to bear on the jury, the court
Speaker 1: will not hear that kind of information from the jurors.
Speaker 1: The last exception is one that the U. S. Supreme
Speaker 1: Court carved out in recent years to say that if
Speaker 1: there is significant evidence of racial animus affecting the jury's deliberations,
Speaker 1: that the Court of Court should hear is that kind
Speaker 1: of evidence from a juror. But none of those exceptions
Speaker 1: apply in this case. So the defense argues that the
Speaker 1: new trial should be granted without any kind of evidentiary
Speaker 1: hearing because there's enough on the record already with what
Speaker 1: the juror said. But does it seem likely that the
Speaker 1: judge will hold a hearing. It seems unlikely to me
Speaker 1: that the court will decide this motion without some further inquiry.
Speaker 1: I think that the court is likely to hear from
Speaker 1: one or both jurors who have come forward so far,
Speaker 1: and to probe their reasons for not disclosing this information
Speaker 1: if in fact, it turns out that they did not
Speaker 1: disclose it on their juror questionnaires, Because again, what the
Speaker 1: court is going to be trying to determine is whether
Speaker 1: the jurors harbored any kind of bias that would have
Speaker 1: provided UH cause for them to have been excused UM
Speaker 1: from the jury during the warrite or process, the prosecution
Speaker 1: requested that the jury be given a court appointed attorney.
Speaker 1: Does that indicate that there could be possible criminal perjury charges?
Speaker 1: I wouldn't read that into the government's request UH for
Speaker 1: the court to a point an attorney. I think that
Speaker 1: the government was trying to UH streamline UM the process
Speaker 1: for moving forward UM and to UH and to ask
Speaker 1: the court to exercise supervisory authority essentially over the process
Speaker 1: moving forward. Having an attorney appointed to represent the juror
Speaker 1: helps that process. And what it also does, incidentally, is
Speaker 1: now require any attorney who wishes to communicate with that juror,
Speaker 1: whether it's the prosecutors or the defense attorneys, to go
Speaker 1: through that attorney, because lawyers are bound by rules of
Speaker 1: professional conduct that require that if they know a an
Speaker 1: individual is represented by an attorney in a matter that
Speaker 1: they must contact that individual through their attorney. What kind
Speaker 1: of factors would the judge consider? Will she consider the
Speaker 1: strength of the evidence against Maxwell, Will she consider having
Speaker 1: to put the four victims who testified through another trial? Well,
Speaker 1: motions for a new trial are disfavored precisely because of
Speaker 1: the interests and finality in judgments once they've been rendered,
Speaker 1: and those interests include not having to put victims and
Speaker 1: witnesses through another trial. But that said, the legal determination
Speaker 1: that the court will need to make is whether or
Speaker 1: not the record establishes that these jurors um were sufficiently
Speaker 1: unbiased um that they should we were appropriately seated as
Speaker 1: jurors in this case. So I think the court is
Speaker 1: likely to hear from these jurors UM about their reasons
Speaker 1: for not disclosing this information UM if in fact um
Speaker 1: they failed to disclose it, and also um their own
Speaker 1: views about the case when they went to the case UM.
Speaker 1: And there are precedents for courts making such inquiries of
Speaker 1: jurors um to inquire into why they failed to make
Speaker 1: disclosures UM and what the jurors responses reveal about their biases. So,
Speaker 1: for example, there was a case a death penalty case
Speaker 1: in Massachusetts, tried a number of years ago, where it emerged,
Speaker 1: after the defendant was sentenced to death, that one of
Speaker 1: the jurors failed to disclose that she herself had been
Speaker 1: the victim of a horrific violent crime, even though all
Speaker 1: potential jurors were asked about that, and when she was
Speaker 1: questioned about it in a subsequent post trial hearing, she
Speaker 1: said that it was so traumatic for her to talk
Speaker 1: about that experience that she simply chose not to because
Speaker 1: it was so shameful and difficult for her to discuss that.
Speaker 1: And so even though the court found in that case
Speaker 1: that she harbored no specific bias towards that defendant, the
Speaker 1: court found that her reason for not disclosing it mainly
Speaker 1: that it was so traumatic for her to discuss those experiences.
Speaker 1: UM was the kind of information that would have caused
Speaker 1: the court to excuse her for cause UM initially had
Speaker 1: the court known about it, because it was clearly still
Speaker 1: so raw and emotional for that juror, such that the
Speaker 1: court would have been concerned about the juror's ability to
Speaker 1: decide the present case UM fairly and based solely on
Speaker 1: the evidence. And so I think that the judge if
Speaker 1: the court makes an inquiry of these jurors, is going
Speaker 1: to want to know a bit about their own experience
Speaker 1: with abuse to sort of the nature and circumstances of it.
Speaker 1: At the court will also inquire again about why they
Speaker 1: failed to disclose it if they did um and whether
Speaker 1: or not, taking all the facts and circumstances together, including
Speaker 1: the witnesses demeanor, at any such hearing, whether the court
Speaker 1: concludes that the jurors ultimately harbored some bias towards Maxwell
Speaker 1: and wanted to get on this jury, or there was
Speaker 1: anything about their own experiences with the use that would
Speaker 1: have caused them to be unable to be fair and
Speaker 1: impartial in this case. Was the conviction in that case
Speaker 1: in the death penalty case reversed, Yes, the defendant had
Speaker 1: fled guilty to the crime. The only thing put before
Speaker 1: the jury in that case was whether the defendant should
Speaker 1: be sentenced to death um, and the court did set
Speaker 1: aside that death sentence on account of the juror's partiality.
Speaker 1: A lot of experts are saying that this revelation, this
Speaker 1: is so serious that it's likely that the judge is
Speaker 1: going to reverse Maxwell's conviction. Do you agree with that.
Speaker 1: I think it's too soon to predict how the court
Speaker 1: will rule here. I think we need to take things
Speaker 1: one step at a time, and as I said a
Speaker 1: moment ago, the first order of business is to find
Speaker 1: those juror questionnaires and to see what the juror said,
Speaker 1: and then to follow up with the jurors. Um. I
Speaker 1: think it's very hard to say that this is a
Speaker 1: per se case for Fertile, even if the jurors did
Speaker 1: not disclose this information. I think we're several steps away
Speaker 1: from the court having all the information it needs to
Speaker 1: make a decision. Does this say something about those lengthy
Speaker 1: questionnaires that are sent out to pools of jurors. This
Speaker 1: juror said, you know, he just went through it really quickly,
Speaker 1: and then they based their questions on whether or not
Speaker 1: I think the judge individually questioned each juror who said
Speaker 1: they were the victim of sex abuse. I can understand
Speaker 1: a jew or just going really fast through question after
Speaker 1: question after question. I wonder how useful they really are.
Speaker 1: So it's an interesting question about whether it is certain
Speaker 1: points they're diminishing returns to a lengthy jury questionnaire, and
Speaker 1: whether in fact it can be uh uh counter productive
Speaker 1: to have so many questions that there is an increased
Speaker 1: risk that the jurors will not pay attention to the
Speaker 1: most significant questions. In this particular case, whether a potential
Speaker 1: juror had a personal experience or whether somebody close to
Speaker 1: them had an experience with sexual abuse seems to be
Speaker 1: very important information that the parties would want to find
Speaker 1: out about each potential juror, and so without having looked
Speaker 1: at all of the other questions carefully to decide what
Speaker 1: might have been discarded. UM. I do think as a
Speaker 1: general matter, it is perhaps a good reminder that sometimes
Speaker 1: less is more. If if, if, if, if the judge
Speaker 1: does reverse the conviction. Is there any doubt that the
Speaker 1: prosecutors will have to retry her given the seriousness of
Speaker 1: the allegations and the notoriety of the case, the prosecutors
Speaker 1: will have to make that evaluation in light of a
Speaker 1: number of considerations. UM. But I would be very surprised
Speaker 1: if they would not retry her. Um, given the seriousness
Speaker 1: of the charges here. But that said, uh, we are
Speaker 1: way way way too early, I think to be making
Speaker 1: predictions about what's going to happen. Thanks Jessica, that's professor
Speaker 1: Jessica Roth of Cordoza Law School. The U s. Supreme
Speaker 1: Court struggle with the question of whether immigrants who entered
Speaker 1: the country illegally and have sought to avoid deportation on
Speaker 1: humanitarian grounds must be given a bond hearing after being
Speaker 1: in detention for six months. The justices are confronting how
Speaker 1: to handle a precedent that lower courts have interpreted to
Speaker 1: require those bond hearings for certain immigrants after six months attention.
Speaker 1: Joining me is Leon Fresco, a partner at Hollandon Knight Leon.
Speaker 1: How long can immigrants who entered the country illegally be
Speaker 1: kept in detention without a bond hearing? So this depends
Speaker 1: you because there are many different contexts in which four
Speaker 1: nationals are detained. And so the very first case, that's
Speaker 1: the seminal case that discussed this issue, is the case
Speaker 1: called Zavidas, where it was a Lithuanian person who had
Speaker 1: had an order of removal to Lithuania, but at the
Speaker 1: time that he was born, he was born in the
Speaker 1: Soviet Union. He was not born there was no Lithuania
Speaker 1: at that time any more, and so when it came
Speaker 1: time to deport him back to Lithuania. Lithuania said, I
Speaker 1: don't know this person. This is a Soviet Union citizen,
Speaker 1: and the Soviet Union doesn't exist anymore, so we're not
Speaker 1: taking them. And so then the US government was was
Speaker 1: faced with two equally lousy scenarios. Detained Zavidas for the
Speaker 1: rest of his life or let him out. And so
Speaker 1: the court was presented with that case in the nineties,
Speaker 1: and the court said, even though the statute doesn't ever
Speaker 1: use either a hundred and eighty days or six months,
Speaker 1: it doesn't have any of that in it. It said,
Speaker 1: it's not significantly likely that you will be removed in
Speaker 1: the foreseeable future. If you've already been detained six months,
Speaker 1: we're gonna let you have a bomb hearing. We're gonna
Speaker 1: get you a chance to be released because we're not
Speaker 1: gonna keep you in detention forever. So that's what's called
Speaker 1: a post removal case. In the meantime, after that was decided,
Speaker 1: people then asked, well, what about not post removal, but
Speaker 1: if you're detained in the middle of your proceedings, so
Speaker 1: we haven't decided whether the court you or not, but
Speaker 1: you're detained in these proceedings are taking too long so
Speaker 1: people said that should be six months as well, and
Speaker 1: a lot of the lower courts agreed, But by the
Speaker 1: time discussed to the Supreme Court in the Trump administration
Speaker 1: and the composition of the courts had changed, the courts
Speaker 1: disagreed and said, we're not gonna set a presumptive time
Speaker 1: period for people who are going through proceedings. Whatever long
Speaker 1: it takes, it takes, and if it takes way, way, way,
Speaker 1: way way way too long, you can make what's called
Speaker 1: an individual as applied challenge, saying, hey, I've been detained
Speaker 1: two years, three years, and my proceedings are going nowhere.
Speaker 1: Let me out. So that's the difference between a person
Speaker 1: who finished their proceedings and a person who's in the
Speaker 1: middle of their proceedings. So today's cases, we're tricky because
Speaker 1: they are people who are in the middle of their proceedings.
Speaker 1: But because of an earlier Supreme Court case from last week,
Speaker 1: we said that these people are not considered to be
Speaker 1: in detention during their proceedings, but are considered to be
Speaker 1: post removal detention because these are people who have already
Speaker 1: been deported and have come back into the United States
Speaker 1: and we're trying to deport them again. But they're saying no, no, no, no, no,
Speaker 1: something happened in the middle of the time for when
Speaker 1: you deported me, so when I came back that it
Speaker 1: would be very dangerous for me for you to deport me.
Speaker 1: The please, please, please don't do it for those people,
Speaker 1: because the post removal cases six months. Should the courts
Speaker 1: make these people also have a six month the tension
Speaker 1: period because you can't interpret the same set you differently
Speaker 1: for two different kinds of people. So that's the argument
Speaker 1: they're making, and what's the federal government's position. The federal
Speaker 1: government is saying, yes, if you have a point beheaded bureaucratic,
Speaker 1: you have to interpret the same set you the same
Speaker 1: way for everybody. Yes, then it would be six months.
Speaker 1: But then these people who have been deported and who
Speaker 1: are returning actually will get better treatment than people who
Speaker 1: are coming for the first time and are being detained,
Speaker 1: because the courts of decide is that those people don't
Speaker 1: get a six months the tension period. And these aren't
Speaker 1: like sasa It people where we know we can't support
Speaker 1: them ever because there is no Lithuania is not going
Speaker 1: to accept them, and no other countries gonna accept them.
Speaker 1: These people can be deported, but we just have to
Speaker 1: finish their proceeding. And so that's the obstacle to deportation.
Speaker 1: It isn't that no country will take them. And so
Speaker 1: that's the arguments the government was making here. And the
Speaker 1: Supreme Court was very gingerly trying to figure all of
Speaker 1: this out during your argument and trying to understand all
Speaker 1: these different permutations, and you could tell they didn't have
Speaker 1: it exactly all understood by their questioning what were the
Speaker 1: main concerns you heard the justices discuss. So I think
Speaker 1: the main concerns from the what you would call them
Speaker 1: more progressive justices is they were really focused on the practical.
Speaker 1: How long is it gonna take for this human being
Speaker 1: and others like them to have their hearing, And if
Speaker 1: it's gonna take one year, two years, three years, years,
Speaker 1: why should they be allowed to be in detention all
Speaker 1: of this time? And when would be the time that
Speaker 1: would be appropriate. And so this is where the Council
Speaker 1: for the Advocates were saying, Okay, well though, that's why
Speaker 1: it should be six months, and after six months you
Speaker 1: should get a right to have bonds and be bonded
Speaker 1: out if you're not a danger to society and if
Speaker 1: you're not a flight risk, and the government was saying no,
Speaker 1: no, no no, no, no, you can't create a six months
Speaker 1: time train for this because this isn't something where we
Speaker 1: know that the person is never going to be deported.
Speaker 1: In fact, most of these people are going to be deported,
Speaker 1: and if we can keep them detained, we can finish
Speaker 1: these cases more quickly because these cases would go and
Speaker 1: what's called the detained docket, which is a faster immigration
Speaker 1: court docket than the non detained docket, so that these
Speaker 1: time periods are hard to analyze because the reason we
Speaker 1: don't have these folks in the detained docket is because
Speaker 1: we don't know if we can detain them. But once
Speaker 1: you give us authority to do it, we will put
Speaker 1: them into detained docket and their cases will go much faster.
Speaker 1: So that's from the progressive wing. That was their concern
Speaker 1: is they seem to say, look, we want to apply
Speaker 1: to six months standard if you're not gonna give us
Speaker 1: some guarantees about how long this is gonna take, because
Speaker 1: this could take forever and it's not fair to keep
Speaker 1: people to say for so long just for an immigration thing.
Speaker 1: They didn't commit any crime of any time, So that's
Speaker 1: number one. On the conservative side, they seem to have
Speaker 1: a bunch of different possibilities. Number one might be actually
Speaker 1: overruling the Zavida's case in the first place, which the government,
Speaker 1: the Biden administration, doesn't want. This would be a huge
Speaker 1: nightmare for the Biden administration if by defending this particular
Speaker 1: kind of detention you ended up with actually overruling Xavidas,
Speaker 1: which would then allow the government to definitely detain anybody,
Speaker 1: even people it knew it couldn't deport. So that's a possibility,
Speaker 1: and that's out there as a as a possibility. I
Speaker 1: don't know if the court will go that far. Also,
Speaker 1: Justice Cony Barrett seems to have like a compromise position.
Speaker 1: She was trying the carve out, which is where I
Speaker 1: think if you said, Leon, you have to come up
Speaker 1: with a prediction, I think it could end up here,
Speaker 1: which is where the court would say, look, we're not
Speaker 1: gonna say six months, but come to us with individual
Speaker 1: claims if you think that there's an undue delay, and
Speaker 1: we will do this on a case by case basis.
Speaker 1: And then the court was trying to figure out criteria
Speaker 1: of what it could use for such an analysis, but
Speaker 1: it didn't really get there. But I could see the
Speaker 1: court over the next six months trying to hammer out
Speaker 1: something like that where it could provide guidance on what
Speaker 1: you could do on a case by case basis, but
Speaker 1: not give a six month presumption that the lower courts,
Speaker 1: the immigration courts correct. That will make many, many, many
Speaker 1: individual cases that's to get filed, as opposed to having
Speaker 1: a bright line rule where after six months the government
Speaker 1: knows it has to release people who are not like
Speaker 1: risks and who are not dangerous, and so all of
Speaker 1: those people will need to have access to council and
Speaker 1: will need to them be able to file a lawsuit,
Speaker 1: which needs the leader to four or somebody else will
Speaker 1: have to put up that money, or they have to
Speaker 1: file what's called an informed of operas, which is a
Speaker 1: very long, convoluted process to convince the court that you
Speaker 1: don't have any money. So all of that will have
Speaker 1: to be done, and then you'll have to go through
Speaker 1: at least hundred and twenty days of additional litigation while
Speaker 1: you're in detention for you to get out and have
Speaker 1: a bond hearing. So that would be the outcome of
Speaker 1: as applied standard as opposed to setting a bright line
Speaker 1: of look after six months, you have to lead people out.
Speaker 1: But I mean, either of those are possibilities, and there's
Speaker 1: the remote possibility they may just say nobody anymore gets
Speaker 1: a six months presumption, not even the original people who
Speaker 1: were people you just couldn't deport because no country would
Speaker 1: take them. None of them will get a six months presumption.
Speaker 1: So we'll see all three of those possibilities are still alive.
Speaker 1: But the third would mean that they would overrule one
Speaker 1: of their precedents, correct, which is something that is going
Speaker 1: to come up a couple of times this term, or
Speaker 1: at least in the abortion cases. And one wonders if
Speaker 1: they want to be overruling precedent so frequently correct. I mean,
Speaker 1: it would be a monumental thing. Who overturns Zabdas. But
Speaker 1: to the extent that this set of justice has says, look,
Speaker 1: I don't see how we can keep zabdas when the
Speaker 1: entire point of Zabdas is that it puts a six
Speaker 1: month standard where literally, if you put a control f
Speaker 1: search for the days or six months, you don't see
Speaker 1: it anywhere in the statutes. How can we as a
Speaker 1: conservative textual cord keep this decision. So they might say that,
Speaker 1: or they might say, look, this would be very dangerous
Speaker 1: to let the government indefinitely detain people we know can't
Speaker 1: be deported. Are we really going to give immigrants a
Speaker 1: life sentence and jail for just the fact that a
Speaker 1: government won't take them back. That seems kind of harsh,
Speaker 1: And so the question is, then what can we do?
Speaker 1: Can we create some other carve outs that differentiate the
Speaker 1: kinds of cases where a person can't be deported because
Speaker 1: the country won't take them, and the kinds of cases
Speaker 1: where a person can't be deported because even though we've
Speaker 1: deported them already, they've come back and are in the
Speaker 1: middle of a hearing to decide if they get this
Speaker 1: special relief just for a very narrow thing, that they're
Speaker 1: gonna be tortured if they go back to the country
Speaker 1: where we deported them too, because of something that happened
Speaker 1: in the meantime after we deported them. And so they
Speaker 1: might make that carve out and say that that carve
Speaker 1: out matters, which would be odd because usually a fatue
Speaker 1: means the same thing for everybody. But they may say, no,
Speaker 1: it doesn't which would be kind of poopy, or they
Speaker 1: may say it does mean this for everybody, but nevertheless,
Speaker 1: we're we're just gonna say you still have to have
Speaker 1: and as applied talents for every single purpose. So all
Speaker 1: of these things are possible and we'll just have to
Speaker 1: see how they come up with the final answer there.
Speaker 1: So how many people are we talking about? How many
Speaker 1: people with this case the decisionless case impact well, so
Speaker 1: it could end up being thousands of people. And it
Speaker 1: also depends from the standpoint of if there is a
Speaker 1: six month right, then potentially many more people come back
Speaker 1: who've been deported and they try to make these claims
Speaker 1: knowing that they can get out and say it months,
Speaker 1: as opposed to if people think they're gonna be indefinitely detained.
Speaker 1: Perhaps some people don't come back because they say, oh,
Speaker 1: Holy Mother, I don't want to go back to America.
Speaker 1: If I get caught, I'll be put in the pensions
Speaker 1: for three or four years. And so the number could
Speaker 1: change depending eithern on what the relief is. So, um
Speaker 1: do they discuss the class action aspect of this right,
Speaker 1: So there's there's also such a story language about whether
Speaker 1: you can get relief on these kinds of cases based
Speaker 1: on a class case or whether these need to be
Speaker 1: done on a case by case basis. And so in
Speaker 1: the cases that had to do with tending immigration proceedings,
Speaker 1: the Supreme Court that said you can't tile these as
Speaker 1: a class. They all need to be done individually. And
Speaker 1: so that's one of the issues that's going to be
Speaker 1: determined here is can you do this as a class
Speaker 1: because they all have one common legal claim, or is
Speaker 1: this gonna have to be something where you're gonna to
Speaker 1: show that the detention was unreasonable given the circumstances in
Speaker 1: your case, that the government was delaying your case and
Speaker 1: that's why you should be let out. The Biden administration
Speaker 1: has gotten some blowback because of its positions and certain
Speaker 1: immigration issues that it hasn't been as progressive as immigration
Speaker 1: advocates want. Are they getting criticized for the position in
Speaker 1: this case where they're just standing in the shoes of
Speaker 1: the Trump administration. I think in general the advocates are
Speaker 1: very disappointed. And this has been a theme with both
Speaker 1: the Obama administration and the Biden administration that in both
Speaker 1: administrations they have defended the statutory text the way Congress
Speaker 1: wrote it, which if you appear to read it at
Speaker 1: faith value, says that the detention needs to go on,
Speaker 1: and it needs to be mandatory, and it needs to
Speaker 1: be the length of the proceedings. That's the way Congress
Speaker 1: wrote those statutes. Now, the question is is that fair?
Speaker 1: Does that make any sense? Is if you mean? All
Speaker 1: of those are logical questions, But both the Obama administration
Speaker 1: and the Biden administration both made the calculation that at
Speaker 1: the end, the statute is written the way it's written,
Speaker 1: and unless we're prepared to say that that statute is unconstitutional,
Speaker 1: we have to defend it the way it's written. And
Speaker 1: from neither the Biden administration nor the Obama administrations ever
Speaker 1: decided to say that these statutes were unconstitutional. And so
Speaker 1: they've defended it, and the advocates I've given them quite
Speaker 1: a lot of plock for doing it. But I mean,
Speaker 1: once you start saying immigration detention statutes are unconstitutional, then
Speaker 1: what are you doing? I mean, at that point that
Speaker 1: becomes a major problem, because what are you supposed to
Speaker 1: do to control unfettered immigration into the United States? And
Speaker 1: so this this is the problem. But you know, to
Speaker 1: the extensive people want to criticize the Biden administration for
Speaker 1: a bunch of different things. The one thing you have
Speaker 1: to say and give them the credits for his looks.
Speaker 1: They are calling balls and strikes on a bunch of things,
Speaker 1: and this is one example of them where they're not.
Speaker 1: This is clearly not a politicized Justice department, and it's
Speaker 1: a justice department that trying to make its way through
Speaker 1: reading a statute the way you would do it regardless
Speaker 1: of the president. Thanks Leon, that's Leon Fresco of hollanden Knight.
Speaker 1: I'm June Crosson. You're listening to Bloomberg