WEBVTT - Obamacare Threatened Again 0:00:00.320 --> 0:00:04.359 The Justice Department is appealing a Texas federal judge's decision 0:00:04.519 --> 0:00:08.880 to invalidate the Affordable Care Act requirement that private health 0:00:08.920 --> 0:00:13.760 insurers fully cover preventive health screenings at no cost to patience. 0:00:14.280 --> 0:00:18.200 This comes four years after the same judge, Rit O'Connor 0:00:18.360 --> 0:00:21.680 of the Northern District of Texas, tried to toss the 0:00:21.920 --> 0:00:27.000 entire ACA as unconstitutional. Of course, the Supreme Court reverse 0:00:27.120 --> 0:00:31.080 that ruling. O'Connor's latest decision kicks off a case that 0:00:31.160 --> 0:00:34.080 could also wind up at the Supreme Court and has 0:00:34.120 --> 0:00:38.440 financial implications for some one hundred fifty million Americans on 0:00:38.640 --> 0:00:43.159 employer sponsored health plans. Here's White House Press Secretary Karine 0:00:43.200 --> 0:00:46.479 Jean Pierre, it's yet another attack on the ability of 0:00:46.520 --> 0:00:51.320 Americans to make their own healthcare choices. Efforts to undermine 0:00:51.440 --> 0:00:55.120 us requirement are wrong, and they take us backwards, not forwards. 0:00:55.800 --> 0:00:59.000 Joining me, as Lawrence Gostin, Faculty director of the O'Neill 0:00:59.120 --> 0:01:01.720 Institute for a New National and Global Health Law at 0:01:01.760 --> 0:01:07.440 Georgetown University, tell us about this decision, what kinds of 0:01:07.440 --> 0:01:13.560 services it affects. It affects a whole host of highly 0:01:13.600 --> 0:01:21.280 effective prevention services. These include things like cancer screening, pregnancy care, 0:01:21.840 --> 0:01:30.200 they involve HIV medications, datons, hypertension screening. Basically, anything that 0:01:31.319 --> 0:01:34.560 a patient would go to the hospital for what to 0:01:34.600 --> 0:01:39.800 their doctor for to prevent disease that has very high 0:01:39.959 --> 0:01:44.400 cost benefit ratio would be on the chopping block. So 0:01:44.440 --> 0:01:48.960 this is really serious. Of all of the attempts to 0:01:49.520 --> 0:01:54.960 dismantle the Affordable Care Act, and basically it's had eight 0:01:55.000 --> 0:01:58.920 trips to the United States Supreme Court, which is unprecedented, 0:01:59.440 --> 0:02:03.440 almost one hundred attempts to repeal it. And now this 0:02:04.000 --> 0:02:08.680 Wou've got the most important part of the Affordable Care Act, 0:02:08.800 --> 0:02:13.480 which is prevention. And it's important to mention that prevention 0:02:14.240 --> 0:02:17.880 is mentioned more than two hundred times in the Affordable 0:02:17.919 --> 0:02:22.919 Care Act. That's the heart and soul of this law. 0:02:23.560 --> 0:02:28.560 And here we've got a very conservative judge, known hostile 0:02:28.639 --> 0:02:32.760 to the AA, who's in the past struck the whole 0:02:32.840 --> 0:02:37.000 law down, only to be overturned, issuing a nationwide injunction 0:02:37.080 --> 0:02:43.400 against preventive care services. So does this potentially affect not 0:02:43.520 --> 0:02:47.560 just people who get insurance through Obamacare but all Americans 0:02:47.560 --> 0:02:53.240 with private healthcare coverage. Yes, it includes most people with 0:02:53.320 --> 0:02:57.760 private health insurance, and that private health insurance. Now, I 0:02:57.840 --> 0:03:03.240 don't anticipate that insurers will stop covering these, but I 0:03:03.400 --> 0:03:06.720 do anticipate that many of them, not at all, will 0:03:06.840 --> 0:03:12.799 charge a hefty co pay or deductible. And that may 0:03:12.840 --> 0:03:17.080 not affect the richest people, but we know that for 0:03:18.080 --> 0:03:22.040 low and working class Americans, they will stay away from 0:03:22.080 --> 0:03:25.880 their doctor if they have to pay for these prevention services. 0:03:26.600 --> 0:03:30.800 Was this legal challenge brought on religious grounds, because I 0:03:30.840 --> 0:03:33.880 don't see what all these preventive care services have to 0:03:33.919 --> 0:03:37.880 do with religion. They were brought on two grounds. One 0:03:38.320 --> 0:03:44.520 was that the United States Preventative Services Task Force was 0:03:44.640 --> 0:03:50.160 not duly authorized, appointed by the President, ratified by the Senate, 0:03:50.200 --> 0:03:53.520 and doesn't have enough oversight by the Secretary for the 0:03:53.600 --> 0:03:57.440 Department of Health and Human Services. And the judge role 0:03:57.600 --> 0:04:01.200 that the United States Preventative Service, this task Force, which 0:04:01.280 --> 0:04:06.160 recommends these cost free prevention services, that have violated the 0:04:06.200 --> 0:04:09.680 Constitution's appointments clause. And then there was a separate claim 0:04:09.880 --> 0:04:15.320 saying that pre exposure prophylaxis known as PREP that actually 0:04:15.360 --> 0:04:20.240 reduces the risk of HIV from sexual transmission by nearly 0:04:20.360 --> 0:04:24.360 ninety nine percent and from indirection jug used by at 0:04:24.440 --> 0:04:30.360 least seventy four percent, But that violates religious freedom because 0:04:31.320 --> 0:04:37.560 somehow they would be complicit in encouraging behaviors like homosexual 0:04:37.600 --> 0:04:41.680 behavior or drug injunction behavior that they don't agree with, which, 0:04:41.680 --> 0:04:45.360 of course is as a horrible slippery slope if applied 0:04:45.360 --> 0:04:51.160 to all healthcare services. Judge O'Connor's reasoning in other opinions 0:04:51.240 --> 0:04:54.880 has been ridiculed. I mean, what is he basing this on. 0:04:54.920 --> 0:04:58.279 Do you think that this has any staying power? I 0:04:58.320 --> 0:05:02.560 think it's a very weakly reason opinion, And ordinarily I 0:05:02.600 --> 0:05:05.520 would just say, well, don't worry about it. It'll be 0:05:05.560 --> 0:05:10.120 overturned on appeal. But that's far from certain that this 0:05:10.160 --> 0:05:15.239 will happen, because it's going to a very conservative court 0:05:15.240 --> 0:05:19.200 of appeal, the Fifth Circuit, and it's also going to 0:05:19.240 --> 0:05:23.839 the Supreme Court, possibly maybe likely, And both the Fifth 0:05:23.839 --> 0:05:28.400 Circuit and the Supreme Court has been increasingly sympathetic to 0:05:28.560 --> 0:05:33.479 religious freedom claims, and they've also been quite aggressive in 0:05:33.640 --> 0:05:37.880 attempts to clawback public health and safety authorities and the 0:05:37.880 --> 0:05:42.360 administrative state. And so while perhaps the appointment's clause would 0:05:42.400 --> 0:05:45.400 not fare well with the Supreme Court, it could be 0:05:45.480 --> 0:05:49.880 widened to the non delegation doctrine, where there's considerable support 0:05:49.920 --> 0:05:54.760 in the Court saying that, you know, Congress didn't delegate 0:05:54.960 --> 0:05:59.400 sufficient criteria for the task force to make its decisions, 0:05:59.560 --> 0:06:02.600 But in view, it did because it basically told this 0:06:02.720 --> 0:06:06.240 task course to use science and the best available evidence. 0:06:06.279 --> 0:06:10.480 And after all, what more would the American public or 0:06:10.600 --> 0:06:15.960 Congress expect to make decisions about which services to provide 0:06:16.279 --> 0:06:19.200 no cost, but how effective they are and what the 0:06:19.240 --> 0:06:22.960 evidence is for them. So this seems to me something 0:06:23.040 --> 0:06:27.040 that I'm worried about for in its appeal. It could 0:06:27.080 --> 0:06:30.520 be devastating for the Affordable Care Act and for the 0:06:31.360 --> 0:06:35.320 help of the American population. But I'm not one hundred 0:06:35.360 --> 0:06:39.840 percent certain that a very conservative judiciary is going to 0:06:40.920 --> 0:06:44.960 be sympathetic to the Affordable Care Act. The Supreme Court 0:06:45.000 --> 0:06:49.160 has grappled with the Affordable Care Act before and refuse 0:06:49.279 --> 0:06:51.839 to strike it down. Do you think the composition of 0:06:51.839 --> 0:06:56.200 the current court is so different that is concerned. Yes, 0:06:56.720 --> 0:06:59.040 the composition of the Court is very different. I mean, 0:06:59.040 --> 0:07:03.240 you're remember, in the most consequential, the very first attempt 0:07:03.240 --> 0:07:08.200 to overturn the ACA, it was saved by the Chief Justice. 0:07:08.279 --> 0:07:11.440 But the Chief Justice is no longer in the majority 0:07:11.480 --> 0:07:15.840 of the Court, and there are at least five justices 0:07:15.880 --> 0:07:21.720 that seem to be emboldened and don't really have the 0:07:21.920 --> 0:07:27.480 same level of respect for the institution of the Supreme 0:07:27.480 --> 0:07:31.800 Court as as Chief Justice Roberts has. So they've spent 0:07:31.920 --> 0:07:36.880 the last term and the current possibly decisions coming up 0:07:36.960 --> 0:07:41.400 that really dismantle the administrative state, from public health and 0:07:41.440 --> 0:07:46.720 safety in COVID rules through to the environment. And so 0:07:47.480 --> 0:07:52.440 I think we should not take for granted that the 0:07:52.560 --> 0:07:58.120 ACA is saved and will be saved. And particularly it 0:07:58.160 --> 0:08:01.640 would be a great tragedy if, of all of the 0:08:01.760 --> 0:08:06.320 various attempts to dismantle and weaken the Affordable Care Act, 0:08:06.920 --> 0:08:10.320 if the heart of the Act, which is prevention, were 0:08:10.400 --> 0:08:16.240 to suffer this kind of blow. And remember, prevention is 0:08:16.600 --> 0:08:21.320 really cost effective. It's cheap, it prevents just for example, 0:08:21.760 --> 0:08:26.400 it's splashed cervical cancer rates by something like seventy five. 0:08:27.320 --> 0:08:32.440 It's prevented tens of thousands of HIV infections. It's help 0:08:32.559 --> 0:08:38.760 people survive from high blood pressure and cardiovascular problems, women 0:08:38.840 --> 0:08:43.880 with cervical cancer or breast cancer. These are really fundamental 0:08:43.920 --> 0:08:49.439 services that Americans rely on. Wouldn't insurance companies want to 0:08:49.520 --> 0:08:53.040 keep those services to prevent higher costs down the road. 0:08:53.640 --> 0:08:56.240 You would think so, and that's why I think it's 0:08:56.360 --> 0:09:00.360 very possible that insurance companies will continue to cover for them. 0:09:01.000 --> 0:09:04.040 But they may very well, many of them is not. 0:09:04.240 --> 0:09:09.920 Most of them charge large co pays and deductibles, which 0:09:09.960 --> 0:09:15.200 will persuade particularly poor and working class Americans from seeking 0:09:15.920 --> 0:09:20.520 these kinds of cost effective preventive services. You know, being 0:09:20.520 --> 0:09:24.199 an insurer in the United States today is that as 0:09:24.240 --> 0:09:29.079 a risky game because people keep changing their insurance and so, yes, 0:09:29.120 --> 0:09:31.200 it may be that if somebody was going to stay 0:09:31.200 --> 0:09:34.360 with an insurance company for their whole life, that it 0:09:34.400 --> 0:09:38.360 would be better to do prevention. But if an insurer 0:09:38.440 --> 0:09:42.079 pace for prevention and then somebody goes to another insurance 0:09:42.080 --> 0:09:47.080 company and they benefit, the math doesn't figure for those 0:09:47.120 --> 0:09:51.280 insurance companies. Before the ACA, all I can say is 0:09:51.840 --> 0:09:54.840 that there were many insurers that did not cover these 0:09:54.880 --> 0:10:02.000 preventive cares, these preventive screenings, and most them charge significant 0:10:02.200 --> 0:10:05.560 copes and deductibles. We may see a return of that, 0:10:06.160 --> 0:10:09.760 and you know, it's possible that you know, tomorrow or 0:10:09.800 --> 0:10:12.720 next week or next month, a woman will go for 0:10:13.240 --> 0:10:17.640 a PAP snear or breast cancer screening, or a man 0:10:17.760 --> 0:10:21.080 will go for a prostate cancer screening enough fun that 0:10:21.120 --> 0:10:24.600 it's not covered. So what I find a little bit 0:10:24.920 --> 0:10:28.400 confusing is that, you know, the Republicans were out to 0:10:29.200 --> 0:10:32.960 get Obamacare right for lack of a better word, and 0:10:33.280 --> 0:10:37.480 it proved to be so popular across the nation. So 0:10:37.520 --> 0:10:39.959 why are they still attacking it? I mean, it's it's 0:10:39.960 --> 0:10:45.160 a really popular program. It is. There is a total 0:10:45.200 --> 0:10:49.439 disconnect in your question is absolutely well taken. You would 0:10:49.480 --> 0:10:54.040 think after all of twelve years of the Affordable Care Act, 0:10:54.760 --> 0:10:58.640 it's almost unfashionable to think that it's still being attacked. 0:10:59.040 --> 0:11:02.920 It is widely popular, but there are still you know, 0:11:04.000 --> 0:11:10.880 deeply conservative pockets of opinion, their minorities, deeply religious opinion 0:11:11.200 --> 0:11:15.440 again their minorities. But it only takes you know, one person, 0:11:15.640 --> 0:11:18.760 one business to bring a lawsuit, and it only takes 0:11:19.240 --> 0:11:24.720 one judged issue a nationwide injunction, and then the rest 0:11:24.760 --> 0:11:28.240 of it is a lottery. We don't know what the 0:11:28.280 --> 0:11:30.520 appellate courts are going to do or what the Supreme 0:11:30.559 --> 0:11:33.440 Court is going to do. And we've seen in just 0:11:33.640 --> 0:11:38.760 this last term some real significant inroads into the administrative state. 0:11:39.320 --> 0:11:43.480 This is not the same Supreme Court that we you know, 0:11:43.840 --> 0:11:47.120 saw in the heyday of the Roberts Court, where there 0:11:47.200 --> 0:11:51.200 was a certain balance where there was caring about the 0:11:51.240 --> 0:11:56.400 institution itself and not straying too far off of its lane. 0:11:57.120 --> 0:11:59.960 We're not seeing that now, and that's why I think 0:12:00.120 --> 0:12:04.400 every American needs to be concerned. The Biden administration has 0:12:04.640 --> 0:12:07.240 said it's going to appeal this, and I take it 0:12:07.280 --> 0:12:11.079 a lask for the injunction issued by this judge O'Connor 0:12:11.440 --> 0:12:15.440 to be stayed. Is the Fifth Circuit likely to grant that? 0:12:16.120 --> 0:12:19.240 I think it's possible that the Fifth Circuit would grant it. 0:12:19.520 --> 0:12:21.600 If it didn't it, I think it would be a 0:12:21.679 --> 0:12:24.880 huge overreach, because you know, given the fact that you've 0:12:24.880 --> 0:12:29.840 got a law that's been in place for twelve years, 0:12:29.880 --> 0:12:34.439 that these services are so widely embraced by the American public, 0:12:35.360 --> 0:12:38.199 that they're so cost effective, that you would think that 0:12:38.440 --> 0:12:42.640 until it could be a thorough review of the merits, 0:12:42.679 --> 0:12:45.040 that they would stay it. So I think it's possible 0:12:45.040 --> 0:12:49.199 that that will happen. I'm just not convinced about what 0:12:49.280 --> 0:12:52.800 the Fifth Circule will do when it decides on the merits. 0:12:53.880 --> 0:12:57.480 This opinion. Whether it's because of the day it came 0:12:57.480 --> 0:13:00.120 out in the midst of all the Trump news, but 0:13:00.160 --> 0:13:04.040 it didn't get that much attention. And I'm wondering if 0:13:04.040 --> 0:13:07.760 it's because people have become inured to these attacks on 0:13:07.840 --> 0:13:11.560 Obamacare and they just think, oh, another attack, it'll be fine. 0:13:11.960 --> 0:13:14.280 I think that's part of it, you know. But you know, 0:13:14.320 --> 0:13:16.319 I can tell you that I had an op ed 0:13:16.880 --> 0:13:21.280 due to run in a very major news outlet, and 0:13:21.840 --> 0:13:26.240 they told it because like it or not, former President 0:13:26.320 --> 0:13:28.840 Trump seems to suck all of the air out of 0:13:28.840 --> 0:13:31.480 the room. That was part of it. I think part 0:13:31.520 --> 0:13:35.560 of it is just fatigue with the attacks on the 0:13:35.600 --> 0:13:38.640 Affordable Care Act and just assumption that everything will be 0:13:38.679 --> 0:13:42.880 all right. But also there was this huge bombshell for 0:13:42.960 --> 0:13:46.480 American democracy that seemed to have crowded out a lot 0:13:46.480 --> 0:13:49.120 of the discussion. We assume it it's going to go 0:13:49.160 --> 0:13:51.480 up to the Supreme Court. How long will it take? 0:13:52.200 --> 0:13:55.280 It depends on how long was this circuit takes and 0:13:55.960 --> 0:14:00.320 whether there's been expedited appeal. I mean, I think it's 0:14:00.360 --> 0:14:04.760 possible that it could happen within months up to the court, 0:14:05.040 --> 0:14:12.040 especially if you have at stake something so consequential to 0:14:12.160 --> 0:14:16.840 the health and safety of the American population. We're not 0:14:16.960 --> 0:14:21.160 talking about something trivial. Here we're talking about something that 0:14:22.080 --> 0:14:26.200 will cost lives, and it could cost a lot of lives. 0:14:27.240 --> 0:14:30.400 And again, this is from one judge in Texas. We've 0:14:30.400 --> 0:14:33.800 seen this time and again. How one judge in Texas 0:14:34.240 --> 0:14:39.920 issues a nationwide injunction. Yeah, that affects us all. Yeah, 0:14:39.920 --> 0:14:44.120 it's it's remarkable. I mean, one judge in Texas. Another 0:14:44.200 --> 0:14:48.120 example is that you know, the CDC issued a mask 0:14:48.440 --> 0:14:55.960 mandate for airplane travel, and one judge in the middle 0:14:55.960 --> 0:14:59.920 of Florida issues a nationwide injunction and pull the whole 0:15:00.240 --> 0:15:02.280 plug on it, and we still haven't had an appeal 0:15:02.320 --> 0:15:06.520 on it, decision on appeal. So yeah, this, you know, 0:15:07.280 --> 0:15:13.000 we really shouldn't have a single conservative or liberal judge 0:15:14.600 --> 0:15:19.240 be making national policy that has such consequence for the 0:15:19.280 --> 0:15:26.800 American population. It's just simply wrong. And I think the 0:15:26.840 --> 0:15:31.480 American public should really recall, recoil in horror at the 0:15:31.520 --> 0:15:36.320 fact that you know, one conservative lay judge in the 0:15:36.320 --> 0:15:40.240 middle of the country can take down in the entire 0:15:40.400 --> 0:15:45.600 edifice of preventive healthcare in America. And we're waiting for 0:15:45.720 --> 0:15:51.200 a judge in Amarillo, Texas, Matthew Kesmark, to see whether 0:15:51.320 --> 0:15:55.520 or not he's going to issue a nationwide injunction against 0:15:55.520 --> 0:16:00.040 the abortion pill and basically overrule what the FDA he 0:16:00.200 --> 0:16:04.800 decided decades ago. Absolutely, I'm keeping a closed eye on that. 0:16:05.640 --> 0:16:09.800 And you've got a you know, an FDA approved medication 0:16:10.440 --> 0:16:13.240 more than fifty percent of all abortions or through that 0:16:13.560 --> 0:16:18.760 abortion medication. There's another example of or a single federal 0:16:19.280 --> 0:16:22.840 judge with the health of American women hang in the 0:16:22.880 --> 0:16:27.840 balance because of one judge. It just it defies common sense. Yeah, 0:16:27.880 --> 0:16:32.200 they've gone from forum shopping to judge shopping, looking for 0:16:32.320 --> 0:16:36.720 specific judges to bring these cases too. Thanks so much, Lawrence. 0:16:37.240 --> 0:16:40.800 That's Lawrence Gosten, Faculty director of the O'Neill Institute for 0:16:40.920 --> 0:16:47.240 National and Global Health Law at Georgetown University. Prepaid call 0:16:47.400 --> 0:16:53.840 from odd Non. Sayed's case became famous and suspect because 0:16:53.840 --> 0:16:58.640 of the twenty fourteen podcast serial. Then last September, Sayed 0:16:58.760 --> 0:17:01.960 walked out of prison to serving twenty three years for 0:17:02.000 --> 0:17:05.119 the murder of his former high school girlfriend. It seemed 0:17:05.160 --> 0:17:08.800 like the case was over in October when prosecutors dropped 0:17:08.800 --> 0:17:13.040 the charges against him, saying DNA evidence had excluded him. 0:17:13.480 --> 0:17:18.200 But then last week, the Appellate Court of Maryland reinstated 0:17:18.320 --> 0:17:22.960 Sayed's conviction. The reason the victim's family hadn't received enough 0:17:23.080 --> 0:17:26.560 notice of the September hearing where Sayed won his release, 0:17:27.200 --> 0:17:30.879 said has said, the appeal just increases the suffering for 0:17:31.000 --> 0:17:34.719 both families. We definitely understand that Hayes family has suffered 0:17:34.760 --> 0:17:39.560 so much and they continue to suffer, and I just 0:17:39.640 --> 0:17:42.640 it's just that we suffered too, and we just hope 0:17:42.680 --> 0:17:47.080 that the court today just takes notice of that they 0:17:47.119 --> 0:17:49.960 were a family that suffers. Also joining me is Appellet 0:17:50.000 --> 0:17:54.680 attorney Stephen Klepper, a principle with Craymon and Graham. Why 0:17:55.040 --> 0:17:59.760 was Sayed's murder conviction reinstated last week by the Appellate 0:18:00.200 --> 0:18:03.000 of Maryland. What happened was that the Appellate Court of 0:18:03.040 --> 0:18:08.639 Maryland decided that the victim representative, mister Lee, who is 0:18:08.680 --> 0:18:12.919 the brother of the victim, Hayman Lee, that he received 0:18:13.400 --> 0:18:17.560 inadequate notice. It was one business day before the hearing, 0:18:17.640 --> 0:18:20.719 it was a Friday before a Monday hearing, and the 0:18:20.960 --> 0:18:25.760 infringement on his rights under the Maryland Victim's laws was 0:18:25.840 --> 0:18:29.760 that he was only able to attend by zoom rather 0:18:29.800 --> 0:18:33.040 than in person. Because he desired to attend in person 0:18:33.320 --> 0:18:37.000 and everyone else was able to attend in person. As 0:18:37.000 --> 0:18:39.919 I understand it, the judge allowed him to address the court, 0:18:40.080 --> 0:18:43.520 which the law doesn't expressly give victims the right to 0:18:43.560 --> 0:18:47.119 speak at these kinds of hearings. So it seems like 0:18:47.400 --> 0:18:51.120 a technicality, a procedure. He did attend by zoom. So 0:18:51.359 --> 0:18:53.879 this whole thing is about him not being able to 0:18:53.920 --> 0:18:57.760 be there in person. Yes, that is actually it. And 0:18:58.359 --> 0:19:01.520 for so many years we've talked about criminal justice rights 0:19:01.600 --> 0:19:04.560 as in the Fourth Amendment, and the exclusionary rule is 0:19:04.600 --> 0:19:09.240 a technicality. What happened here was that the majority held 0:19:09.440 --> 0:19:14.239 in great detail that mister Lee did not have the 0:19:14.320 --> 0:19:16.919 right to address the court. He did not have the 0:19:17.040 --> 0:19:20.280 right to cross examine any witnesses, He did not have 0:19:20.359 --> 0:19:24.040 the right to present or attack any evidence. That was 0:19:24.080 --> 0:19:27.119 what he was arguing that he, as the victim representative, 0:19:27.400 --> 0:19:31.760 had that right, and all three judges rejected those arguments 0:19:31.800 --> 0:19:35.040 for what he said he was entitled to do at 0:19:35.080 --> 0:19:38.480 the hearing, and instead what the majority held was that, well, 0:19:38.520 --> 0:19:41.440 he has a right to dignity under the Marilyn Constitution, 0:19:41.880 --> 0:19:45.080 and that right of dignity was violated by the fact 0:19:45.119 --> 0:19:49.960 that he had to attend by zoom, when everyone who 0:19:50.200 --> 0:19:54.000 lived locally or had the means to fly in was 0:19:54.040 --> 0:19:57.439 able to attend in person. It's stunning to me because 0:19:57.440 --> 0:20:01.320 defendants appear for hearings by zoom, don't they They do, 0:20:01.960 --> 0:20:05.080 they did very much through the pandemic, and the court 0:20:05.200 --> 0:20:09.440 acknowledges that for the pandemic, many defendants who wanted to 0:20:09.520 --> 0:20:13.200 attend in person did not have that opportunity when their 0:20:13.280 --> 0:20:16.640 most precious rights protected by due presses of the law 0:20:16.640 --> 0:20:19.399 were at stake. And the court said yes, but the 0:20:19.440 --> 0:20:23.240 court was open and people were able to attend, And 0:20:23.600 --> 0:20:27.359 because mister Lee didn't have the required notice, it was 0:20:27.400 --> 0:20:31.359 an affront to his dignity as the victim representative. So 0:20:31.760 --> 0:20:35.400 it is fairly hard to wrap one's mind around. And 0:20:35.720 --> 0:20:38.800 one of the things I find very interesting here is 0:20:38.880 --> 0:20:41.840 that what mister Lee was arguing he had a right 0:20:41.880 --> 0:20:45.359 to do was to have the opportunity to prepare for 0:20:45.400 --> 0:20:48.760 the hearing, that he could present his best statement that 0:20:48.840 --> 0:20:52.439 he could, so that he could cross examine any witnesses, 0:20:52.680 --> 0:20:54.960 so they could put on any evidence of guilt or 0:20:55.160 --> 0:20:58.639 attack the evidence being put forward of actual innocence. And 0:20:58.680 --> 0:21:02.600 if that was the claim, which it was, well, then notice, 0:21:02.680 --> 0:21:07.600 so short may well have been prejudicial error. Prejudicial error 0:21:07.600 --> 0:21:10.760 means error that is not harmless. And much of the 0:21:10.880 --> 0:21:14.600 time what defendants do is they say, well, this right 0:21:14.720 --> 0:21:17.760 was violated, and the courts say, well, yes, your right 0:21:17.880 --> 0:21:21.399 was violated, but it is harmless error. And on the 0:21:21.440 --> 0:21:24.200 civil side all the time, there are many cases here 0:21:24.200 --> 0:21:27.520 in Maryland that say, well, yes, there was a right 0:21:27.600 --> 0:21:31.240 to have a hearing on this motion for summary judgment 0:21:31.640 --> 0:21:35.520 or motion to dismiss, But even though the court violated 0:21:35.600 --> 0:21:39.560 that right, you can't identify anything that would have happened 0:21:39.640 --> 0:21:43.040 differently had the hearing occurred, And so it is harmless error. 0:21:43.240 --> 0:21:48.560 And so the court has essentially done in rejecting mister 0:21:48.720 --> 0:21:52.200 Lee's contentions about what he had the right to do, 0:21:52.880 --> 0:21:56.919 and yet still reversing means that this is akin to 0:21:57.080 --> 0:22:01.440 what's called structural error. A structural error means it's impossible 0:22:01.520 --> 0:22:04.560 to have harmless error. This is structural and that just 0:22:05.240 --> 0:22:08.439 seems like a very strong ruling to me. So his 0:22:08.600 --> 0:22:10.800 lawyer says, they're going to challenge the part of the 0:22:10.800 --> 0:22:15.280 appellate ruling where Lee asked to be able to, as 0:22:15.320 --> 0:22:20.159 you mentioned, actively challenge in court. The prosecutor's evidence that 0:22:20.240 --> 0:22:23.240 the case should be dismissed. But it seems like you're 0:22:23.240 --> 0:22:26.360 getting into a whole different thing if you start allowing 0:22:26.560 --> 0:22:32.200 victims to interfere with the actual merits of a case. 0:22:32.880 --> 0:22:35.440 I'm going to stick to the Maryland Constitution because of 0:22:35.520 --> 0:22:38.760 the Maryland Constitution does is that it gives the state's 0:22:38.800 --> 0:22:43.760 attorney the exclusive right to be the prosecutor in the 0:22:43.800 --> 0:22:48.480 trial courts, except when the General Assembly says otherwise. And 0:22:48.680 --> 0:22:52.800 what all three judges did was they look through and said, 0:22:52.880 --> 0:22:55.720 here are some parts where let's say a victim has 0:22:55.760 --> 0:22:59.200 a right to be heard, a right to present an 0:22:59.240 --> 0:23:02.560 impacts team, And they said, not even that is here. 0:23:02.680 --> 0:23:06.480 And so in this context, it seems quite a stretch 0:23:06.880 --> 0:23:10.280 to say that there was an affirmative right not merely 0:23:10.320 --> 0:23:14.760 to attend and to present an impact statement, but to 0:23:15.000 --> 0:23:19.480 act as a prosecutor when the state's attorney would not. 0:23:20.119 --> 0:23:24.280 And they're already are circumstances where the General Assembly has said, yes, 0:23:24.400 --> 0:23:27.800 we will have the Attorney General be the prosecutor. It 0:23:27.800 --> 0:23:30.639 will be someone other than the state's attorneyho will prosecute 0:23:30.640 --> 0:23:33.560 this case. But there has been no provision in this 0:23:33.640 --> 0:23:38.440 law for anyone to be the one to make arguments 0:23:38.520 --> 0:23:42.520 of guilt when the prosecution isn't. And that's a pretty 0:23:42.520 --> 0:23:50.560 conspicuous omission, because this statutory provision was created for situations 0:23:50.680 --> 0:23:55.280 in which the state's attorney believes that that the defendant 0:23:55.359 --> 0:23:56.879 has a right to a new trial or a right 0:23:56.920 --> 0:24:00.639 to acquittal, and so everyone understood that this would be 0:24:00.680 --> 0:24:04.719 something that would not be a traditional adversarial proceeding. And 0:24:04.800 --> 0:24:08.040 so the absence of something that would say this third 0:24:08.080 --> 0:24:11.119 party has the right to act as prosecutor, that's something 0:24:11.160 --> 0:24:14.040 that's just not there in the statue. The court's order 0:24:14.520 --> 0:24:17.560 to reinstate his conviction and sentence doesn't go into effect 0:24:17.560 --> 0:24:20.280 for sixty days, so during that time a new hearing 0:24:20.440 --> 0:24:23.359 will be scheduled. So if you look at this, the 0:24:23.480 --> 0:24:26.240 only thing that would be different in the new hearing 0:24:26.520 --> 0:24:30.040 is that young Lee would be given notice to attend 0:24:30.080 --> 0:24:33.280 in person, would be there in person. But there's a 0:24:33.280 --> 0:24:36.720 new States attorney in Baltimore. Could he have a different 0:24:36.840 --> 0:24:41.800 position on the case. It is possible, and I do 0:24:41.840 --> 0:24:45.920 not believe that mister Bates, our states attorney, has taken 0:24:45.960 --> 0:24:50.960 a public position on what his intent is. He previously, 0:24:51.119 --> 0:24:55.640 in the case of Keith Davis, junior, who had undergone 0:24:55.680 --> 0:24:59.760 five trials. He dropped those charges rather than doing a 0:25:00.000 --> 0:25:04.880 sixth trial, which was controversial in some quarters. And so 0:25:05.119 --> 0:25:08.520 what I don't know is whether he is going to 0:25:08.600 --> 0:25:11.679 do essentially the same thing with mister Sayed's case. And 0:25:12.640 --> 0:25:15.200 I think a lot of us are sitting waiting, watching, 0:25:15.840 --> 0:25:20.960 and I believe reading the opinion that there would be 0:25:21.119 --> 0:25:25.000 jurisdiction to hold a new hearing during this sixty day period. 0:25:25.240 --> 0:25:31.240 And during this sixty day period, what could happen would be, yes, 0:25:31.280 --> 0:25:36.520 that the vacator would then be redone the same ruling. 0:25:37.040 --> 0:25:41.160 But even in that circumstance, mister Bates would then have 0:25:41.240 --> 0:25:44.960 the ability to decide, well, I'm going to retry rather 0:25:45.040 --> 0:25:48.440 than dismiss the charges because the Appellate Court of Maryland 0:25:48.440 --> 0:25:51.840 held that the prior dismissal was a nullity. I mean, 0:25:51.880 --> 0:25:55.359 there are a lot of times where prosecutors accept plea 0:25:55.440 --> 0:25:58.639 deals and the victim's family doesn't agree with the plea deal. 0:25:59.000 --> 0:26:04.040 So if you start allowing victims families to be the prosecutors, 0:26:04.160 --> 0:26:09.600 that opens up a Pandora's box. Well, from my perspective, 0:26:09.920 --> 0:26:14.159 yes it would. And at the same time, we have 0:26:14.480 --> 0:26:18.720 this constitutional right for victims to be treating, to be 0:26:18.840 --> 0:26:23.840 treated with dignity. And what the Pellet Court of Maryland 0:26:24.640 --> 0:26:28.400 held here was that yes, this was a particular affront, 0:26:28.720 --> 0:26:32.399 and it contained language that this was unique. Normally, the 0:26:32.400 --> 0:26:36.720 state's attorney has unfettered discretion to enter a Noah pross 0:26:36.800 --> 0:26:40.240 a dismissal of charges. But under these unique circumstances, it 0:26:40.359 --> 0:26:44.160 was a nullity. And in so many ways this case 0:26:44.320 --> 0:26:50.119 has created unusual legal questions. And what I certainly find 0:26:50.400 --> 0:26:54.040 frustrating here and that I've written about in Bloomberg Law, 0:26:54.440 --> 0:26:59.480 is that said keeps losing by one vote margins on 0:26:59.640 --> 0:27:03.760 matters that weren't really what the state or in this case, 0:27:03.840 --> 0:27:07.199 the victim were arguing. And so what I would have 0:27:07.359 --> 0:27:09.920 liked would have been many years ago. Many years ago 0:27:09.920 --> 0:27:14.760 I've wrote, right after Judge Welch had entered the new 0:27:14.800 --> 0:27:17.119 trial order, I've wrote an op ed in the Baltimore 0:27:17.160 --> 0:27:19.720 Sun saying, here are the reasons just to have a 0:27:19.760 --> 0:27:23.040 new trial. Don't appeal this, But they appealed it. And 0:27:23.200 --> 0:27:25.240 if we had had a new trial many years ago, 0:27:25.640 --> 0:27:29.560 instead of all of these people who very much believes 0:27:29.560 --> 0:27:32.960 guilty and people very much believes innocent, instead of them 0:27:33.000 --> 0:27:35.800 having to have that hypothetical argument, you could actually have 0:27:35.840 --> 0:27:38.919 had a trial in front of a jury, and now 0:27:39.520 --> 0:27:43.199 strange things just keep happening. What I would say is 0:27:43.240 --> 0:27:47.240 that reading the majority opinion, what they very clearly feel 0:27:47.480 --> 0:27:52.639 is that the state's attorney engaged in behavior that was 0:27:52.680 --> 0:27:56.040 designed to thwart a pellet refuel and that was very 0:27:56.119 --> 0:27:59.240 concerning for them, and a pellet courts do not like 0:27:59.480 --> 0:28:03.520 having their review thwarted. And at the same time, what 0:28:03.840 --> 0:28:09.240 Judge Berger kept saying at the oral argument and essentially 0:28:09.280 --> 0:28:12.480 in his opinion is the criminal defendants have rights too. 0:28:12.800 --> 0:28:16.199