WEBVTT - Juror Revelations Could Overturn Maxwell Conviction 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:09.520 --> 0:00:11.960 I wasn't sure that this day would ever come, and 0:00:12.640 --> 0:00:15.800 I just feel so grateful that the jury believed us 0:00:15.920 --> 0:00:20.160 and sent a strong message that perpetrators of sexual abuse 0:00:20.160 --> 0:00:23.360 and exploitation will be held accountable, no matter how much 0:00:23.520 --> 0:00:26.400 power and privilege that they have. That was Annie Farmer 0:00:26.560 --> 0:00:29.320 a little more than a week ago after a jury 0:00:29.400 --> 0:00:32.600 found the Lane Maxwell guilty of engaging in a ten 0:00:32.680 --> 0:00:36.640 year sex trafficking scheme with Jeffrey Epstein. But now the 0:00:36.800 --> 0:00:39.800 verdict that was hailed as long delayed justice for the 0:00:39.920 --> 0:00:44.680 victims is in jeopardy. In newspaper interviews, a juror said 0:00:44.720 --> 0:00:47.920 that during the jury deliberations, he revealed that he had 0:00:47.960 --> 0:00:50.760 been the victim of sexual abuse as a child, and 0:00:50.800 --> 0:00:54.280 that his story helps sway other jurors who questioned the 0:00:54.320 --> 0:00:58.240 credibility of some of Maxwell's accusers. Than a second juror 0:00:58.280 --> 0:01:01.880 made a similar disclosure, joining me as former federal prosecutor 0:01:02.000 --> 0:01:06.280 Jessica Ralph, a professor at Cardozo Law School. Jessica explain 0:01:06.360 --> 0:01:10.080 why the revelations by these jurors are leading the defense 0:01:10.120 --> 0:01:13.120 to ask for a new trial. A descendant is entitled 0:01:13.240 --> 0:01:17.480 to a trial by a jury that is fair and impartial. 0:01:17.720 --> 0:01:22.080 That is a constitutional guarantee. A defendant is not entitled 0:01:22.120 --> 0:01:24.720 to a perfect trial, but at a minimum, to a 0:01:24.840 --> 0:01:28.720 trial by a jury that will decide the case based 0:01:28.760 --> 0:01:32.520 on the evidence presented in court and not influenced by 0:01:32.560 --> 0:01:35.520 any bias. And so the problem that has been raised 0:01:35.560 --> 0:01:39.800 by these recent revelations by two jurors is the concern 0:01:40.040 --> 0:01:44.080 that they may have harbored a bias against Maxwell based 0:01:44.120 --> 0:01:48.600 on their own prior experiences as victims of sexual abuse. 0:01:48.800 --> 0:01:50.400 And so what the court is going to be trying 0:01:50.400 --> 0:01:54.240 to determine is whether, essentially these jurors should not have 0:01:54.360 --> 0:01:59.920 been seated because of those prior experiences. Clearly, the question 0:02:00.000 --> 0:02:02.400 in the air that the jurors had to fill out 0:02:02.520 --> 0:02:05.800 asks have you are a friend or a family member 0:02:05.800 --> 0:02:09.320 ever been the victim of sexual harassment, sexual abuse or 0:02:09.440 --> 0:02:15.639 sexual assault? So was their misrepresentation here by either juror Well, 0:02:15.720 --> 0:02:17.639 there are a couple of things we still don't know. 0:02:18.120 --> 0:02:21.600 So we don't know how he answered that question on 0:02:21.680 --> 0:02:26.079 his questionnaire because it's under steel. So the lawyers may know, 0:02:26.360 --> 0:02:29.080 but the general public doesn't know yet how In fact, 0:02:29.120 --> 0:02:33.440 he answered that question. It's possible that he answered the 0:02:33.520 --> 0:02:38.160 question accurately and did disclose that he had prior experience 0:02:38.200 --> 0:02:41.400 of abuse, and that the lawyers either didn't catch it 0:02:41.760 --> 0:02:45.440 or failed to follow up on it, either deliberately or inadvertent. 0:02:45.800 --> 0:02:48.840 Unlikely they would have deliberately failed to follow up on it, 0:02:48.919 --> 0:02:52.440 but it is possible that they missed his answer. So 0:02:52.600 --> 0:02:55.000 the first order of business, I imagine for the parties 0:02:55.120 --> 0:02:57.480 right now is going to be finding his questionnaire and 0:02:57.680 --> 0:03:01.040 seeing how, in fact he answered it. And it seems 0:03:01.360 --> 0:03:04.280 unlikely that he answered it in a way that disclosed 0:03:04.280 --> 0:03:07.440 the abuse, because if he had, it is likely that 0:03:07.480 --> 0:03:10.800 the attorneys would have asked follow up questions about it. 0:03:11.040 --> 0:03:14.720 And according to the reporting, the transcript of the vardier 0:03:14.880 --> 0:03:18.360 does not reveal any follow up questioning of this particular 0:03:18.440 --> 0:03:22.560 juror on that issue. So that's suggest that he did 0:03:22.639 --> 0:03:26.240 not disclose it on his questionnaire, or that he did 0:03:26.280 --> 0:03:28.640 disclose it but the lawyers didn't catch it. But the 0:03:28.639 --> 0:03:31.280 first order of business is going to be determining how 0:03:31.320 --> 0:03:34.200 he answered that question on the questionnaire, and that's important 0:03:34.200 --> 0:03:36.120 for the next step of the inquiry because the court 0:03:36.200 --> 0:03:39.960 is going to inquire into his possible motives for not 0:03:40.160 --> 0:03:43.200 disclosing it, assuming for present purposes that he did not 0:03:43.400 --> 0:03:46.640 disclose it. If the court were to determine that he 0:03:46.920 --> 0:03:50.440 did not disclose it deliberately in order to get on 0:03:50.520 --> 0:03:54.640 the jury, then that would be more indicative of bias. 0:03:54.640 --> 0:04:00.280 Then if he, as he has suggested, perhaps inadvertently to 0:04:00.320 --> 0:04:03.640 disclose it because he was rushing through the questionnaire. And 0:04:03.680 --> 0:04:06.720 there are cases where courts have talked about the significance 0:04:06.960 --> 0:04:12.400 of a juror's motivations for failing to disclose information that 0:04:12.520 --> 0:04:16.279 seems relevant to determining bias, because if it seems that 0:04:16.320 --> 0:04:20.120 the juror was determined or trying to get onto the jury, 0:04:20.279 --> 0:04:23.880 that is often indicative in the courts of view of 0:04:24.080 --> 0:04:27.280 harboring some bias and wanting to get onto the jury 0:04:27.360 --> 0:04:31.200 in order to render a verdict against the defendant. Will 0:04:31.240 --> 0:04:34.800 the judge look into what happened in the jury room. 0:04:34.880 --> 0:04:38.000 That's one of the more interesting aspects of this new 0:04:38.040 --> 0:04:41.000 turn in the case, which is that although the jurors 0:04:41.000 --> 0:04:44.719 has suggested in their accounts to the media that they 0:04:44.880 --> 0:04:47.880 brought their experiences into the jury room with them and 0:04:48.040 --> 0:04:50.960 used them to persuade other jurors who may have been 0:04:51.000 --> 0:04:55.680 initially skeptical of the victims witnesses credibility. The judge is 0:04:55.720 --> 0:04:59.880 not going to consider testimony or other evidence about the 0:05:00.040 --> 0:05:03.000 jury deliberation in making her decision about whether or not 0:05:03.040 --> 0:05:06.400 to grant a new trial. That's because there's a federal 0:05:06.480 --> 0:05:10.920 rule of evidence that expressly prohibits a judge from considering 0:05:11.480 --> 0:05:15.599 testimony or an affidavit from a juror about conduct or 0:05:15.600 --> 0:05:20.080 statements that occurred during the jury's deliberation. That's a rule 0:05:20.600 --> 0:05:24.960 of long standing precedent um, and it's designed to protect 0:05:25.040 --> 0:05:28.920 the privacy of jury deliberations. The concern is that if 0:05:29.000 --> 0:05:32.120 jurors are not assured of the privacy of their deliberation, 0:05:32.520 --> 0:05:35.560 that they will be less candid. Courts have been willing 0:05:35.760 --> 0:05:38.800 to accept the fact that this rule may result in 0:05:38.839 --> 0:05:42.039 occasional injustice, but they have said that they do not 0:05:42.200 --> 0:05:45.839 think that the jury system could survive efforts to perfect it. 0:05:46.240 --> 0:05:49.320 In this regard. There are a few narrow exceptions to 0:05:49.440 --> 0:05:52.320 that rule. For example, if a juror were to come 0:05:52.360 --> 0:05:54.919 forward and say that a juror was offered a bribe 0:05:55.320 --> 0:05:58.839 over threatened to influence their verdict, the court would hear 0:05:59.000 --> 0:06:02.480 testimony from a about that. The court also would hear 0:06:02.560 --> 0:06:06.920 testimony from jurors about their having been exposed to extraneous 0:06:07.320 --> 0:06:11.600 extrajudicial publicity, for example, in newspaper account about the case. 0:06:12.160 --> 0:06:16.839 But other than those narrow exceptions, which involve extraneous external 0:06:16.880 --> 0:06:19.840 information being brought to bear on the jury, the court 0:06:19.880 --> 0:06:22.960 will not hear that kind of information from the jurors. 0:06:23.400 --> 0:06:25.599 The last exception is one that the U. S. Supreme 0:06:25.640 --> 0:06:28.839 Court carved out in recent years to say that if 0:06:28.880 --> 0:06:34.440 there is significant evidence of racial animus affecting the jury's deliberations, 0:06:34.440 --> 0:06:36.919 that the Court of Court should hear is that kind 0:06:36.960 --> 0:06:40.080 of evidence from a juror. But none of those exceptions 0:06:40.480 --> 0:06:45.400 apply in this case. So the defense argues that the 0:06:45.440 --> 0:06:48.680 new trial should be granted without any kind of evidentiary 0:06:48.960 --> 0:06:52.000 hearing because there's enough on the record already with what 0:06:52.040 --> 0:06:54.960 the juror said. But does it seem likely that the 0:06:55.080 --> 0:06:58.719 judge will hold a hearing. It seems unlikely to me 0:06:58.839 --> 0:07:04.960 that the court will decide this motion without some further inquiry. 0:07:05.080 --> 0:07:07.760 I think that the court is likely to hear from 0:07:07.839 --> 0:07:10.640 one or both jurors who have come forward so far, 0:07:11.320 --> 0:07:16.240 and to probe their reasons for not disclosing this information 0:07:16.680 --> 0:07:18.640 if in fact, it turns out that they did not 0:07:18.800 --> 0:07:22.680 disclose it on their juror questionnaires, Because again, what the 0:07:22.680 --> 0:07:25.320 court is going to be trying to determine is whether 0:07:25.400 --> 0:07:29.040 the jurors harbored any kind of bias that would have 0:07:29.200 --> 0:07:33.720 provided UH cause for them to have been excused UM 0:07:33.720 --> 0:07:37.880 from the jury during the warrite or process, the prosecution 0:07:38.000 --> 0:07:42.080 requested that the jury be given a court appointed attorney. 0:07:42.280 --> 0:07:47.480 Does that indicate that there could be possible criminal perjury charges? 0:07:49.160 --> 0:07:55.120 I wouldn't read that into the government's request UH for 0:07:55.200 --> 0:07:57.840 the court to a point an attorney. I think that 0:07:57.920 --> 0:08:04.120 the government was trying to UH streamline UM the process 0:08:04.360 --> 0:08:10.040 for moving forward UM and to UH and to ask 0:08:10.160 --> 0:08:15.880 the court to exercise supervisory authority essentially over the process 0:08:16.000 --> 0:08:20.280 moving forward. Having an attorney appointed to represent the juror 0:08:21.080 --> 0:08:25.280 helps that process. And what it also does, incidentally, is 0:08:25.400 --> 0:08:30.440 now require any attorney who wishes to communicate with that juror, 0:08:30.440 --> 0:08:34.240 whether it's the prosecutors or the defense attorneys, to go 0:08:34.440 --> 0:08:37.920 through that attorney, because lawyers are bound by rules of 0:08:37.960 --> 0:08:42.559 professional conduct that require that if they know a an 0:08:42.559 --> 0:08:45.840 individual is represented by an attorney in a matter that 0:08:45.920 --> 0:08:51.440 they must contact that individual through their attorney. What kind 0:08:51.480 --> 0:08:55.080 of factors would the judge consider? Will she consider the 0:08:55.160 --> 0:09:00.480 strength of the evidence against Maxwell, Will she consider having 0:09:00.520 --> 0:09:05.240 to put the four victims who testified through another trial? Well, 0:09:05.320 --> 0:09:10.040 motions for a new trial are disfavored precisely because of 0:09:10.080 --> 0:09:13.640 the interests and finality in judgments once they've been rendered, 0:09:13.960 --> 0:09:17.160 and those interests include not having to put victims and 0:09:17.160 --> 0:09:21.880 witnesses through another trial. But that said, the legal determination 0:09:21.960 --> 0:09:24.720 that the court will need to make is whether or 0:09:24.760 --> 0:09:32.800 not the record establishes that these jurors um were sufficiently 0:09:33.480 --> 0:09:39.280 unbiased um that they should we were appropriately seated as 0:09:39.400 --> 0:09:43.000 jurors in this case. So I think the court is 0:09:43.120 --> 0:09:47.959 likely to hear from these jurors UM about their reasons 0:09:48.000 --> 0:09:52.319 for not disclosing this information UM if in fact um 0:09:52.360 --> 0:09:57.000 they failed to disclose it, and also um their own 0:09:57.120 --> 0:10:01.200 views about the case when they went to the case UM. 0:10:01.200 --> 0:10:04.480 And there are precedents for courts making such inquiries of 0:10:04.960 --> 0:10:09.640 jurors um to inquire into why they failed to make 0:10:09.679 --> 0:10:17.320 disclosures UM and what the jurors responses reveal about their biases. So, 0:10:17.480 --> 0:10:19.880 for example, there was a case a death penalty case 0:10:19.920 --> 0:10:23.760 in Massachusetts, tried a number of years ago, where it emerged, 0:10:23.880 --> 0:10:27.640 after the defendant was sentenced to death, that one of 0:10:27.679 --> 0:10:30.880 the jurors failed to disclose that she herself had been 0:10:31.040 --> 0:10:35.000 the victim of a horrific violent crime, even though all 0:10:35.000 --> 0:10:38.640 potential jurors were asked about that, and when she was 0:10:38.720 --> 0:10:42.520 questioned about it in a subsequent post trial hearing, she 0:10:42.679 --> 0:10:45.280 said that it was so traumatic for her to talk 0:10:45.360 --> 0:10:50.360 about that experience that she simply chose not to because 0:10:50.360 --> 0:10:53.320 it was so shameful and difficult for her to discuss that. 0:10:54.000 --> 0:10:56.160 And so even though the court found in that case 0:10:56.200 --> 0:11:00.080 that she harbored no specific bias towards that defendant, the 0:11:00.120 --> 0:11:03.080 court found that her reason for not disclosing it mainly 0:11:03.080 --> 0:11:06.760 that it was so traumatic for her to discuss those experiences. 0:11:06.880 --> 0:11:09.959 UM was the kind of information that would have caused 0:11:10.000 --> 0:11:14.079 the court to excuse her for cause UM initially had 0:11:14.120 --> 0:11:16.880 the court known about it, because it was clearly still 0:11:16.920 --> 0:11:19.719 so raw and emotional for that juror, such that the 0:11:19.760 --> 0:11:22.480 court would have been concerned about the juror's ability to 0:11:22.559 --> 0:11:26.160 decide the present case UM fairly and based solely on 0:11:26.200 --> 0:11:29.160 the evidence. And so I think that the judge if 0:11:29.200 --> 0:11:31.280 the court makes an inquiry of these jurors, is going 0:11:31.320 --> 0:11:34.760 to want to know a bit about their own experience 0:11:34.800 --> 0:11:37.480 with abuse to sort of the nature and circumstances of it. 0:11:38.040 --> 0:11:40.720 At the court will also inquire again about why they 0:11:40.760 --> 0:11:43.720 failed to disclose it if they did um and whether 0:11:43.800 --> 0:11:47.200 or not, taking all the facts and circumstances together, including 0:11:47.240 --> 0:11:50.400 the witnesses demeanor, at any such hearing, whether the court 0:11:50.480 --> 0:11:55.199 concludes that the jurors ultimately harbored some bias towards Maxwell 0:11:55.240 --> 0:11:57.839 and wanted to get on this jury, or there was 0:11:57.880 --> 0:12:01.200 anything about their own experiences with the use that would 0:12:01.200 --> 0:12:03.680 have caused them to be unable to be fair and 0:12:03.720 --> 0:12:07.199 impartial in this case. Was the conviction in that case 0:12:07.360 --> 0:12:11.280 in the death penalty case reversed, Yes, the defendant had 0:12:11.320 --> 0:12:14.840 fled guilty to the crime. The only thing put before 0:12:14.880 --> 0:12:17.199 the jury in that case was whether the defendant should 0:12:17.200 --> 0:12:19.840 be sentenced to death um, and the court did set 0:12:19.880 --> 0:12:24.079 aside that death sentence on account of the juror's partiality. 0:12:24.520 --> 0:12:29.000 A lot of experts are saying that this revelation, this 0:12:29.080 --> 0:12:34.080 is so serious that it's likely that the judge is 0:12:34.120 --> 0:12:37.720 going to reverse Maxwell's conviction. Do you agree with that. 0:12:38.960 --> 0:12:42.520 I think it's too soon to predict how the court 0:12:42.840 --> 0:12:45.560 will rule here. I think we need to take things 0:12:45.600 --> 0:12:47.360 one step at a time, and as I said a 0:12:47.360 --> 0:12:49.440 moment ago, the first order of business is to find 0:12:49.480 --> 0:12:52.480 those juror questionnaires and to see what the juror said, 0:12:53.320 --> 0:12:56.400 and then to follow up with the jurors. Um. I 0:12:56.440 --> 0:12:58.400 think it's very hard to say that this is a 0:12:58.480 --> 0:13:01.480 per se case for Fertile, even if the jurors did 0:13:01.480 --> 0:13:05.240 not disclose this information. I think we're several steps away 0:13:05.280 --> 0:13:08.120 from the court having all the information it needs to 0:13:08.200 --> 0:13:12.839 make a decision. Does this say something about those lengthy 0:13:12.920 --> 0:13:16.880 questionnaires that are sent out to pools of jurors. This 0:13:16.960 --> 0:13:19.840 juror said, you know, he just went through it really quickly, 0:13:20.559 --> 0:13:23.480 and then they based their questions on whether or not 0:13:23.720 --> 0:13:27.080 I think the judge individually questioned each juror who said 0:13:27.080 --> 0:13:29.640 they were the victim of sex abuse. I can understand 0:13:29.640 --> 0:13:32.440 a jew or just going really fast through question after 0:13:32.559 --> 0:13:35.560 question after question. I wonder how useful they really are. 0:13:37.080 --> 0:13:39.680 So it's an interesting question about whether it is certain 0:13:39.679 --> 0:13:43.840 points they're diminishing returns to a lengthy jury questionnaire, and 0:13:43.880 --> 0:13:48.839 whether in fact it can be uh uh counter productive 0:13:49.160 --> 0:13:52.079 to have so many questions that there is an increased 0:13:52.200 --> 0:13:55.000 risk that the jurors will not pay attention to the 0:13:55.080 --> 0:14:00.400 most significant questions. In this particular case, whether a potential 0:14:00.480 --> 0:14:04.800 juror had a personal experience or whether somebody close to 0:14:04.840 --> 0:14:07.760 them had an experience with sexual abuse seems to be 0:14:08.200 --> 0:14:11.800 very important information that the parties would want to find 0:14:11.840 --> 0:14:16.760 out about each potential juror, and so without having looked 0:14:17.360 --> 0:14:20.680 at all of the other questions carefully to decide what 0:14:20.880 --> 0:14:24.360 might have been discarded. UM. I do think as a 0:14:24.440 --> 0:14:28.680 general matter, it is perhaps a good reminder that sometimes 0:14:28.800 --> 0:14:32.680 less is more. If if, if, if, if the judge 0:14:32.720 --> 0:14:36.560 does reverse the conviction. Is there any doubt that the 0:14:36.640 --> 0:14:40.920 prosecutors will have to retry her given the seriousness of 0:14:40.920 --> 0:14:45.880 the allegations and the notoriety of the case, the prosecutors 0:14:45.920 --> 0:14:49.040 will have to make that evaluation in light of a 0:14:49.240 --> 0:14:54.080 number of considerations. UM. But I would be very surprised 0:14:54.120 --> 0:14:58.280 if they would not retry her. Um, given the seriousness 0:14:58.840 --> 0:15:02.960 of the charges here. But that said, uh, we are 0:15:03.000 --> 0:15:06.560 way way way too early, I think to be making 0:15:06.600 --> 0:15:10.040 predictions about what's going to happen. Thanks Jessica, that's professor 0:15:10.120 --> 0:15:15.200 Jessica Roth of Cordoza Law School. The U s. Supreme 0:15:15.240 --> 0:15:18.440 Court struggle with the question of whether immigrants who entered 0:15:18.480 --> 0:15:22.240 the country illegally and have sought to avoid deportation on 0:15:22.360 --> 0:15:26.240 humanitarian grounds must be given a bond hearing after being 0:15:26.280 --> 0:15:30.200 in detention for six months. The justices are confronting how 0:15:30.200 --> 0:15:33.600 to handle a precedent that lower courts have interpreted to 0:15:33.720 --> 0:15:38.160 require those bond hearings for certain immigrants after six months attention. 0:15:38.720 --> 0:15:42.640 Joining me is Leon Fresco, a partner at Hollandon Knight Leon. 0:15:42.680 --> 0:15:47.560 How long can immigrants who entered the country illegally be 0:15:47.760 --> 0:15:52.120 kept in detention without a bond hearing? So this depends 0:15:52.200 --> 0:15:55.960 you because there are many different contexts in which four 0:15:56.080 --> 0:16:00.640 nationals are detained. And so the very first case, that's 0:16:00.640 --> 0:16:03.800 the seminal case that discussed this issue, is the case 0:16:03.920 --> 0:16:09.360 called Zavidas, where it was a Lithuanian person who had 0:16:09.440 --> 0:16:14.200 had an order of removal to Lithuania, but at the 0:16:14.280 --> 0:16:17.400 time that he was born, he was born in the 0:16:17.480 --> 0:16:20.520 Soviet Union. He was not born there was no Lithuania 0:16:20.520 --> 0:16:23.480 at that time any more, and so when it came 0:16:23.520 --> 0:16:26.360 time to deport him back to Lithuania. Lithuania said, I 0:16:26.400 --> 0:16:29.440 don't know this person. This is a Soviet Union citizen, 0:16:29.800 --> 0:16:32.800 and the Soviet Union doesn't exist anymore, so we're not 0:16:32.880 --> 0:16:37.160 taking them. And so then the US government was was 0:16:37.200 --> 0:16:42.680 faced with two equally lousy scenarios. Detained Zavidas for the 0:16:42.720 --> 0:16:46.360 rest of his life or let him out. And so 0:16:46.440 --> 0:16:49.200 the court was presented with that case in the nineties, 0:16:49.680 --> 0:16:52.880 and the court said, even though the statute doesn't ever 0:16:53.120 --> 0:16:56.240 use either a hundred and eighty days or six months, 0:16:56.320 --> 0:16:58.720 it doesn't have any of that in it. It said, 0:16:59.600 --> 0:17:04.359 it's not significantly likely that you will be removed in 0:17:04.440 --> 0:17:08.560 the foreseeable future. If you've already been detained six months, 0:17:08.840 --> 0:17:11.520 we're gonna let you have a bomb hearing. We're gonna 0:17:11.560 --> 0:17:14.440 get you a chance to be released because we're not 0:17:14.480 --> 0:17:18.880 gonna keep you in detention forever. So that's what's called 0:17:18.920 --> 0:17:23.360 a post removal case. In the meantime, after that was decided, 0:17:24.040 --> 0:17:28.040 people then asked, well, what about not post removal, but 0:17:28.119 --> 0:17:32.440 if you're detained in the middle of your proceedings, so 0:17:33.119 --> 0:17:36.000 we haven't decided whether the court you or not, but 0:17:36.119 --> 0:17:39.840 you're detained in these proceedings are taking too long so 0:17:40.440 --> 0:17:45.000 people said that should be six months as well, and 0:17:45.480 --> 0:17:48.600 a lot of the lower courts agreed, But by the 0:17:48.680 --> 0:17:51.679 time discussed to the Supreme Court in the Trump administration 0:17:51.880 --> 0:17:55.760 and the composition of the courts had changed, the courts 0:17:55.880 --> 0:17:59.920 disagreed and said, we're not gonna set a presumptive time 0:18:00.119 --> 0:18:04.360 period for people who are going through proceedings. Whatever long 0:18:04.400 --> 0:18:07.040 it takes, it takes, and if it takes way, way, way, 0:18:07.080 --> 0:18:09.840 way way way too long, you can make what's called 0:18:09.880 --> 0:18:15.040 an individual as applied challenge, saying, hey, I've been detained 0:18:15.280 --> 0:18:18.400 two years, three years, and my proceedings are going nowhere. 0:18:18.880 --> 0:18:21.520 Let me out. So that's the difference between a person 0:18:21.560 --> 0:18:24.159 who finished their proceedings and a person who's in the 0:18:24.200 --> 0:18:29.720 middle of their proceedings. So today's cases, we're tricky because 0:18:30.119 --> 0:18:34.480 they are people who are in the middle of their proceedings. 0:18:34.480 --> 0:18:37.960 But because of an earlier Supreme Court case from last week, 0:18:38.560 --> 0:18:41.840 we said that these people are not considered to be 0:18:41.880 --> 0:18:46.440 in detention during their proceedings, but are considered to be 0:18:46.920 --> 0:18:51.240 post removal detention because these are people who have already 0:18:51.280 --> 0:18:54.800 been deported and have come back into the United States 0:18:55.119 --> 0:18:58.720 and we're trying to deport them again. But they're saying no, no, no, no, no, 0:18:59.119 --> 0:19:01.480 something happened in the middle of the time for when 0:19:01.520 --> 0:19:04.320 you deported me, so when I came back that it 0:19:04.320 --> 0:19:06.960 would be very dangerous for me for you to deport me. 0:19:07.160 --> 0:19:11.000 The please, please, please don't do it for those people, 0:19:11.640 --> 0:19:16.479 because the post removal cases six months. Should the courts 0:19:16.920 --> 0:19:21.440 make these people also have a six month the tension 0:19:21.520 --> 0:19:24.840 period because you can't interpret the same set you differently 0:19:25.240 --> 0:19:27.840 for two different kinds of people. So that's the argument 0:19:27.880 --> 0:19:31.960 they're making, and what's the federal government's position. The federal 0:19:32.000 --> 0:19:36.960 government is saying, yes, if you have a point beheaded bureaucratic, 0:19:37.320 --> 0:19:39.400 you have to interpret the same set you the same 0:19:39.440 --> 0:19:42.639 way for everybody. Yes, then it would be six months. 0:19:42.680 --> 0:19:45.600 But then these people who have been deported and who 0:19:45.600 --> 0:19:50.159 are returning actually will get better treatment than people who 0:19:50.200 --> 0:19:52.880 are coming for the first time and are being detained, 0:19:53.119 --> 0:19:55.600 because the courts of decide is that those people don't 0:19:55.640 --> 0:19:59.040 get a six months the tension period. And these aren't 0:19:59.080 --> 0:20:02.560 like sasa It people where we know we can't support 0:20:02.600 --> 0:20:05.600 them ever because there is no Lithuania is not going 0:20:05.680 --> 0:20:07.800 to accept them, and no other countries gonna accept them. 0:20:08.000 --> 0:20:10.320 These people can be deported, but we just have to 0:20:10.359 --> 0:20:15.400 finish their proceeding. And so that's the obstacle to deportation. 0:20:15.560 --> 0:20:18.879 It isn't that no country will take them. And so 0:20:19.200 --> 0:20:22.399 that's the arguments the government was making here. And the 0:20:22.440 --> 0:20:27.439 Supreme Court was very gingerly trying to figure all of 0:20:27.480 --> 0:20:30.600 this out during your argument and trying to understand all 0:20:30.600 --> 0:20:33.359 these different permutations, and you could tell they didn't have 0:20:33.440 --> 0:20:37.960 it exactly all understood by their questioning what were the 0:20:38.000 --> 0:20:42.680 main concerns you heard the justices discuss. So I think 0:20:42.720 --> 0:20:45.120 the main concerns from the what you would call them 0:20:45.119 --> 0:20:49.840 more progressive justices is they were really focused on the practical. 0:20:50.359 --> 0:20:53.840 How long is it gonna take for this human being 0:20:54.119 --> 0:20:57.479 and others like them to have their hearing, And if 0:20:57.520 --> 0:21:00.840 it's gonna take one year, two years, three years, years, 0:21:00.920 --> 0:21:03.160 why should they be allowed to be in detention all 0:21:03.200 --> 0:21:06.520 of this time? And when would be the time that 0:21:06.560 --> 0:21:10.120 would be appropriate. And so this is where the Council 0:21:10.240 --> 0:21:14.360 for the Advocates were saying, Okay, well though, that's why 0:21:14.400 --> 0:21:16.320 it should be six months, and after six months you 0:21:16.320 --> 0:21:19.440 should get a right to have bonds and be bonded 0:21:19.480 --> 0:21:22.760 out if you're not a danger to society and if 0:21:22.800 --> 0:21:26.680 you're not a flight risk, and the government was saying no, 0:21:26.680 --> 0:21:29.479 no, no no, no, no, you can't create a six months 0:21:30.000 --> 0:21:34.560 time train for this because this isn't something where we 0:21:34.800 --> 0:21:38.360 know that the person is never going to be deported. 0:21:38.400 --> 0:21:40.879 In fact, most of these people are going to be deported, 0:21:41.320 --> 0:21:44.320 and if we can keep them detained, we can finish 0:21:44.359 --> 0:21:48.680 these cases more quickly because these cases would go and 0:21:48.800 --> 0:21:52.920 what's called the detained docket, which is a faster immigration 0:21:52.960 --> 0:21:56.879 court docket than the non detained docket, so that these 0:21:57.160 --> 0:22:01.480 time periods are hard to analyze because the reason we 0:22:01.560 --> 0:22:04.920 don't have these folks in the detained docket is because 0:22:04.960 --> 0:22:07.160 we don't know if we can detain them. But once 0:22:07.160 --> 0:22:09.680 you give us authority to do it, we will put 0:22:09.720 --> 0:22:13.119 them into detained docket and their cases will go much faster. 0:22:13.720 --> 0:22:17.960 So that's from the progressive wing. That was their concern 0:22:18.080 --> 0:22:20.359 is they seem to say, look, we want to apply 0:22:20.440 --> 0:22:23.159 to six months standard if you're not gonna give us 0:22:23.160 --> 0:22:26.560 some guarantees about how long this is gonna take, because 0:22:26.560 --> 0:22:28.600 this could take forever and it's not fair to keep 0:22:28.640 --> 0:22:32.320 people to say for so long just for an immigration thing. 0:22:32.359 --> 0:22:34.760 They didn't commit any crime of any time, So that's 0:22:35.000 --> 0:22:39.359 number one. On the conservative side, they seem to have 0:22:39.440 --> 0:22:43.720 a bunch of different possibilities. Number one might be actually 0:22:44.240 --> 0:22:48.720 overruling the Zavida's case in the first place, which the government, 0:22:48.760 --> 0:22:50.880 the Biden administration, doesn't want. This would be a huge 0:22:51.000 --> 0:22:56.119 nightmare for the Biden administration if by defending this particular 0:22:56.200 --> 0:23:00.760 kind of detention you ended up with actually overruling Xavidas, 0:23:01.359 --> 0:23:05.399 which would then allow the government to definitely detain anybody, 0:23:05.480 --> 0:23:09.840 even people it knew it couldn't deport. So that's a possibility, 0:23:09.960 --> 0:23:12.320 and that's out there as a as a possibility. I 0:23:12.359 --> 0:23:16.240 don't know if the court will go that far. Also, 0:23:16.640 --> 0:23:20.560 Justice Cony Barrett seems to have like a compromise position. 0:23:20.640 --> 0:23:23.439 She was trying the carve out, which is where I 0:23:23.520 --> 0:23:26.000 think if you said, Leon, you have to come up 0:23:26.040 --> 0:23:28.680 with a prediction, I think it could end up here, 0:23:29.119 --> 0:23:31.560 which is where the court would say, look, we're not 0:23:31.600 --> 0:23:35.680 gonna say six months, but come to us with individual 0:23:35.760 --> 0:23:39.560 claims if you think that there's an undue delay, and 0:23:39.640 --> 0:23:42.080 we will do this on a case by case basis. 0:23:42.359 --> 0:23:44.760 And then the court was trying to figure out criteria 0:23:45.280 --> 0:23:47.359 of what it could use for such an analysis, but 0:23:47.480 --> 0:23:49.919 it didn't really get there. But I could see the 0:23:49.960 --> 0:23:52.360 court over the next six months trying to hammer out 0:23:52.760 --> 0:23:56.200 something like that where it could provide guidance on what 0:23:56.240 --> 0:23:58.639 you could do on a case by case basis, but 0:23:58.800 --> 0:24:03.520 not give a six month presumption that the lower courts, 0:24:03.560 --> 0:24:07.760 the immigration courts correct. That will make many, many, many 0:24:07.880 --> 0:24:11.400 individual cases that's to get filed, as opposed to having 0:24:11.400 --> 0:24:14.240 a bright line rule where after six months the government 0:24:14.320 --> 0:24:16.800 knows it has to release people who are not like 0:24:17.040 --> 0:24:19.520 risks and who are not dangerous, and so all of 0:24:19.560 --> 0:24:22.199 those people will need to have access to council and 0:24:22.280 --> 0:24:24.800 will need to them be able to file a lawsuit, 0:24:24.880 --> 0:24:28.200 which needs the leader to four or somebody else will 0:24:28.240 --> 0:24:30.159 have to put up that money, or they have to 0:24:30.200 --> 0:24:33.119 file what's called an informed of operas, which is a 0:24:33.280 --> 0:24:36.560 very long, convoluted process to convince the court that you 0:24:36.560 --> 0:24:38.879 don't have any money. So all of that will have 0:24:38.960 --> 0:24:41.280 to be done, and then you'll have to go through 0:24:41.640 --> 0:24:45.880 at least hundred and twenty days of additional litigation while 0:24:45.960 --> 0:24:49.879 you're in detention for you to get out and have 0:24:49.920 --> 0:24:52.040 a bond hearing. So that would be the outcome of 0:24:52.119 --> 0:24:57.600 as applied standard as opposed to setting a bright line 0:24:57.600 --> 0:25:00.960