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Speaker 1: This is Bloombird Law with June Brussel from Bloomberg Radio.

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Speaker 1: William Wooden went on a burglary spree at a storage

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Speaker 1: facility in Georgia, breaking into one unit, then another by

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Speaker 1: crushing the dry wall between them, then another and another,

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Speaker 1: stealing from ten units in all. So was that one

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Speaker 1: crime or ten crimes? It makes a huge difference in

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Speaker 1: sentencing under the federal three strikes law, and the Supreme

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Speaker 1: Court justices struggle with that question at oral arguments lost

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Speaker 1: October peppering the lawyers with hypotheticals. Justices Stephen Bryan and

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Speaker 1: Elena Kagan were particularly inventive. Jesse James, who I know

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Speaker 1: what he did because I've seen movies, all right, So

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Speaker 1: Jesse James gets on the train, and he goes to

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Speaker 1: one person, and then the next person, and then the

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Speaker 1: next person takes their stuff, you know, in the next car,

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Speaker 1: in the next car, correct, correct, And moreover, you're gonna

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Speaker 1: put him in jail for fifteen years, or maybe he

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Speaker 1: deserves it. But his cousin, Harry James, only robbed one

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Speaker 1: car in one train once, but there were four people

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Speaker 1: on it. And then he gave up his life of

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Speaker 1: crime and you're saying not just Harry, but also not

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Speaker 1: just Jesse, but Harry too, will spent fifteen years in jail.

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Speaker 1: Extra Suppose that there was a crime boss, and he

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Speaker 1: was a good multitasking crime boss, and he had a

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Speaker 1: few phones in front of him. He's sitting in his

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Speaker 1: office one day, and on one phone he's arranging a

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Speaker 1: sale of illegal drugs, and on another phone he's ordering

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Speaker 1: the killing of a competing crime boss. And another phone

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Speaker 1: he's involved in an illegal gambling operation. And they're all

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Speaker 1: going on very close in time to each other, single

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Speaker 1: occasion or three occasions. In a unanimous opinion this week,

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Speaker 1: the joice has decided that Wooden had committed one crime

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Speaker 1: and so would not be getting the mandatory fifteen year

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Speaker 1: prison sentence under the three strikes law. Joining me is

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Speaker 1: Jordan Reuben, a reporter with Bloomberg Law. Jordan, give us

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Speaker 1: a little bit of the background in the case. The

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Speaker 1: defendant in this case, William Wooden. He was sentenced under

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Speaker 1: a law called the Armed Career Criminal Act, and that's

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Speaker 1: a law that has fifteen year mandatory minimums when a

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Speaker 1: defendant is convicted of a federal gun crime and they

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Speaker 1: have three or more prior violent felonies or serious drug offenses.

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Speaker 1: And so the issue in his case was whether his

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Speaker 1: prior offenses counted towards this three strikes law, the Armed

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Speaker 1: Career Criminal Act, and it's a law that is being

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Speaker 1: litigated all the time at the Supreme Court. Really drives

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Speaker 1: the justices nuts because of how difficult it is to

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Speaker 1: figure out whether these prior convictions can count. And there's

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Speaker 1: just so many issues that arise in trying to figure

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Speaker 1: that out. And that was what was happening in Wooden's case.

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Speaker 1: Tell Us about the burglary, wouldn't have pleaded to it

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Speaker 1: was sort of an escalating crime, but in one place exactly,

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Speaker 1: And so it's all about how you describe it, right,

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Speaker 1: And the issue here was this specific component of the Act,

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Speaker 1: which includes crimes that are quote committed on occasions different

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Speaker 1: from another end quote And so the question is what

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Speaker 1: counts as an occasion? Sounds simple enough, right, Well, the

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Speaker 1: court had a pretty difficult time with it because they

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Speaker 1: were looking back at Wooden's prior convictions, namely back to

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Speaker 1: this one night in Georgia where he pleaded guilty to

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Speaker 1: ten counts of burglary for entering ten units of a

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Speaker 1: Georgia mini storage facility on the same night. The question

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Speaker 1: was whether that counts as ten separate offenses under this

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Speaker 1: career criminal law or just one. And so that all

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Speaker 1: came down to the question of whether it was one

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Speaker 1: occasion or whether it was ten different occasions, and the Court,

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Speaker 1: in an opinion by Justice Kagan, said that counted as

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Speaker 1: just one asian based on plain English meaning of the

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Speaker 1: word occasion. I think if you gave the average person

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Speaker 1: that scenario, they would most likely think it was one crime.

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Speaker 1: But yet the Six Circuit Court of Appeals found that

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Speaker 1: he committed ten crimes exactly. So before the court's decision

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Speaker 1: in what In's case, there was a split in the

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Speaker 1: appeals courts, and there were courts of appeals like the

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Speaker 1: Six Circuit, which kind of bros time, and they looked

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Speaker 1: at it from a standpoint of was the crime completed

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Speaker 1: at each moment, so at each point where what had

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Speaker 1: entered a different storage unit, and so therefore it counted

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Speaker 1: as ten different offenses. Other courts took what Justice Kegan's

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Speaker 1: opinion called a more holistic approach and looked at the

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Speaker 1: broader circumstances sort of from more of a common sense

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Speaker 1: point of view, but different courts looked at it different ways,

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Speaker 1: and so that's why the Supreme Court took the case

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Speaker 1: in order to clear up the split. I love Justice

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Speaker 1: Kagan's opinions, and in this one she used examples involving

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Speaker 1: a wedding ceremony and a bar room brawl exactly. There

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Speaker 1: was a lot of colorful aspects to just Cagan's opinion.

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Speaker 1: She's a great writer. He talked about, for example, how

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Speaker 1: if someone had busted out on a condo line or

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Speaker 1: something like that while you were giving your wedding vows,

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Speaker 1: that would all happen during the wedding occasion. But obviously

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Speaker 1: that's not the way that normal people will refer to

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Speaker 1: the term. And so that was kind of the thrust

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Speaker 1: of Kegan's opinion, all about trying to describe it in

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Speaker 1: a way that normal people would talk about things. So

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Speaker 1: now she also put forth a couple of factors that

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Speaker 1: courts could consider in the future, whether the offenses were

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Speaker 1: committed close in time in an uninterrupted course of conduct,

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Speaker 1: whether the occurred in one place, whether they shared a

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Speaker 1: common scheme or purpose. And Justice course that didn't agree

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Speaker 1: with that right. So it was an interesting opinion in

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Speaker 1: terms of the breakdown, because really all the US has

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Speaker 1: agreed on the bottom line in terms of the government

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Speaker 1: being wrong here, but there were some differences of opinion

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Speaker 1: about how to go about arriving in that bottom line.

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Speaker 1: And so Justice Gorsetch he took issue with this multi

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Speaker 1: factor test. He thought that the court was really making

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Speaker 1: it more complicated than it had to be. His opinion

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Speaker 1: was all about something called lenity, which is this longstanding

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Speaker 1: rule that in ambiguous situations courts should defer to the defense.

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Speaker 1: And so Gorgius said, you don't need to go through

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Speaker 1: all this multi factor test, which may be helpful, maybe

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Speaker 1: not just decide the case based on lenity, which, by

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Speaker 1: the way, he wrote, is something that should be playing

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Speaker 1: a bigger role in the law generally. And he was

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Speaker 1: joined by Justice Sonya. So to Mayor, they're often of

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Speaker 1: like mind in criminal cases. Yeah, that's certainly where we'll

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Speaker 1: see them together. Certainly not of a like mind in

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Speaker 1: many other cases, but we do see them kind of

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Speaker 1: forming this, you know, semi regular odd couple in these

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Speaker 1: criminal cases. Certainly not every type of criminal case, like

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Speaker 1: the death penalty, for example, but here we'll have them

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Speaker 1: speaking out on these broader criminal issues, and this was

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Speaker 1: the latest example of that. So you had so tomor

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Speaker 1: as you say, joining Gorsage in this call to give

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Speaker 1: Lennedy more of a prominent role in the courts cases

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Speaker 1: in general. What about justice Kavanaugh, he wrote a separate concurrence, right,

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Speaker 1: So Kavanaugh wrote basically to respond to Gorsage's opinion. And

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Speaker 1: so Kavanaugh, he said, he agreed with the general problem

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Speaker 1: that Gorsach was raising in terms of making sure that

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Speaker 1: people have fair notice of what's illegal and do process

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Speaker 1: and all of that. Kavanaugh thought that Lennedy properly plays

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Speaker 1: a small role in the law, and so he would

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Speaker 1: focus more on what's called men's reya, the presumption that

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Speaker 1: people have a guilty mind and that the government proved

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Speaker 1: that in the course of a prosecution. So Kavanaugh thought

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Speaker 1: that this men's rea assumption, as opposed to lenity, would

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Speaker 1: take care of the problem that Gorsitch was raising. And

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Speaker 1: these were all in concurring opinions. It wasn't really any

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Speaker 1: strong discent per se. Everyone was basically an agreement on

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Speaker 1: the bottom line of what was happening. But there were

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Speaker 1: some interesting sort of side conversations about the law in general.

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Speaker 1: You spoke to someone who said that this might indicate

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Speaker 1: that the subject of lenity is going to be coming

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Speaker 1: up again at the court. That's right. So a couple

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Speaker 1: of people, I suppose to after the opinion both led

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Speaker 1: this lenity issue as an interesting topic that again as

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Speaker 1: shown by this fairly lengthy conversation between Gorsich and Kavanaugh. Again,

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Speaker 1: and this is something that didn't come up at all

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Speaker 1: in Kagan's opinion. That's part of why it's noteworthy that

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Speaker 1: this was a conversation taking place almost entirely on the side,

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Speaker 1: so to speak, and a show that this was a

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Speaker 1: live issue from a couple of the newer justices and

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Speaker 1: again joined by so do Mayor as well, that this

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Speaker 1: is something that's on at least some of the justice's

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Speaker 1: mind and it's something that we're going to be looking

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Speaker 1: out for going forward. Is there a retroactive effect to

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Speaker 1: this decision? So, I think most likely not. Again, when

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Speaker 1: the court is ruling on the criminal issue, they're not

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Speaker 1: dealing with the question of retroactivity. I think as a

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Speaker 1: general matter, it's fair to say that this is a

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Speaker 1: court that is not in favor of retroactively applying rulings,

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Speaker 1: and so what's going to happen next For people who

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Speaker 1: have already been sentenced in their case, they're already underway.

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Speaker 1: It's going to come down to a somewhat tricky procedural

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Speaker 1: mechanism of how far along in the appellate process they are.

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Speaker 1: So I think it's going to be a case where

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Speaker 1: some people might be able to benefit from this, some

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Speaker 1: might not, depending on how far along they are in

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Speaker 1: the process. But at the very least, it's going to

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Speaker 1: be something that going forward, people who are in the

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Speaker 1: type of situation that would enter in in all the

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Speaker 1: circuits now, not just the ones who ruled more in

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Speaker 1: the way that he wanted to, are going to be

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Speaker 1: able to take advantage of this rule. That's better for defendants. Jordan.

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Speaker 1: Is this a decision that will affect a lot of defendants?

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Speaker 1: I think it will. This is a very frequently litigated statute.

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Speaker 1: That's why the government fought so hard in this case.

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Speaker 1: So these cases are being litigated at the court every

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Speaker 1: year because it's the law that is being used all

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Speaker 1: the time. So they're easily going to be hundreds, it's

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Speaker 1: not thousands, certainly going forward over the years that are

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Speaker 1: going to be affected by the decision. Is it a

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Speaker 1: badly written law? Is that the reason why it comes

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Speaker 1: up so often? That's probably what the court would say

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Speaker 1: is part of it, and it's been amended at various

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Speaker 1: points over the years, but it's not, I think, as

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Speaker 1: the lawyers and judges would say, a model of clarity.

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Speaker 1: And so that's part of what the issue has been,

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Speaker 1: but it's not just that. Part of it is the

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Speaker 1: way that the court has interpreted the law over the

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Speaker 1: years has then lent itself to more issues arising and

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Speaker 1: then how to interpret it going forward. And so it's

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Speaker 1: really just had kind of a long and strange life

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Speaker 1: that partly because of how it was written, partly because

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Speaker 1: of how the court has interpreted that's lent itself to

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Speaker 1: sprouting additional litigation. A very judicious answer, thanks Jordan's that's

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Speaker 1: Bloomberg Law reporter Jordan Ruben. According to the Bureau of Prisons,

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Speaker 1: Wooden is currently serving a sentence of about sixteen years

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Speaker 1: in a low security facility in Arkansas with a current

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Speaker 1: release date in Without the three strikes enhancement, his recommended

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Speaker 1: sentence would have been about two years instead of nearly sixteen.

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Speaker 1: His attorney, Alan Kadem says Wooden has already served much

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Speaker 1: more than two years, and that once he's resentenced, we

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Speaker 1: expect him to be sent back home to his family.

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Speaker 1: It's the latest twist in a legal saga that began

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Speaker 1: after Trump supporters accused Smartmatic and Dominion voting systems of

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Speaker 1: being at the center of a vast international conspiracy to

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Speaker 1: rig the election again former President Trump, and that conspiracy

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Speaker 1: theory was echoed on air at Fox News. Fox News

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Speaker 1: was not able to dodge at two point seven billion

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Speaker 1: dollar defamation lawsuit over false claims the network aired about

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Speaker 1: smart Maddox role in the election. Justice David Cohen says, quote,

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Speaker 1: at a minimum, Fox News turned a blind eye to

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Speaker 1: a litany of outrageous claims about plaintiffs, unprecedented in the

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Speaker 1: history of American elections, so inherently improbable that it evinced

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Speaker 1: a reckless disregard for the truth. The claims against host

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Speaker 1: Maria Barter Romo and lew Dobbs can also go forward,

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Speaker 1: but the judge dismissed claims against Janine Pierro, Rudy Giuliani,

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Speaker 1: Andrew Kuppelman, a professor of law, at Northwestern University. Tell

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Speaker 1: us a little about Smart Maddox claims. Here, Smart Madock

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Speaker 1: is essentially claiming that defendants were reckless in making baseless

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Speaker 1: claims but damaged Smart Maddox business. The reason why we

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Speaker 1: have defamation law is because you can really hurt somebody

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Speaker 1: by spreading falsehoods about the quality of their business. So

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Speaker 1: for hundreds of years at common law, the law has

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Speaker 1: protected people from that kind of reckless defamation. And that's

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Speaker 1: what happened here. The defendants, at least allegedly didn't care

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Speaker 1: at all what was true. They just wanted advantage by

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Speaker 1: using any basis for claiming that Trump had been preudulently elected,

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Speaker 1: and that included making entirely baseless claims about the voting machines.

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Speaker 1: So tell us what the standard is when you're suing

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Speaker 1: a media organization like Fox News. When a public figure

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Speaker 1: sue was a media organization for falsehoods about that public figure,

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Speaker 1: The Supreme Court has said that the person complaining that

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Speaker 1: they were defamed has to show that the news organization

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Speaker 1: was or the speaker was. In this because in this case,

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Speaker 1: the speaker wasn't a news organization. That the speaker uttered

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Speaker 1: the falsehood with reckless disregard of whether the speech was

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Speaker 1: true or false. So here the voting machine companies had

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Speaker 1: to prove that the speakers were reckless they did not

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Speaker 1: care who they hurt. So a typical example of recklessness

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Speaker 1: is somebody is speeding down a street where children are playing.

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Speaker 1: It doesn't care whether he hurts the children or not.

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Speaker 1: Doesn't mean to hurt the children. He's just having fun driving,

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Speaker 1: and he is indifferent to who he heard. That's what

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Speaker 1: you've got to prove in defamation claim brought by a

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Speaker 1: public figure. That's a very high standard. We saw in

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Speaker 1: the Sarah peal And trial that the jury did not

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Speaker 1: find for her on using that standard. Mhmm. But here,

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Speaker 1: at least as alleged, the defendants said extremely damaging things

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Speaker 1: about the manufacturers of the voting machines with no evidence

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Speaker 1: at all, no idea of whether it was true or false.

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Speaker 1: So again, as alleged, the allegation is that they were

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Speaker 1: entirely reckless, didn't care whether it was true or not.

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Speaker 1: This was not an honest mistake, this was utter indifference

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Speaker 1: as to whether what they were saying was true or not.

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Speaker 1: In court filings, Fox argued that it repeatedly asked the

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Speaker 1: high profile Trump supporters for proof substantiating their accusations about

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Speaker 1: smart Matic, and they failed to produce any. Does that

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Speaker 1: cut four or against Fox? Well? Uh, they've got an

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Speaker 1: obligation not to be reckless if they take their anchor's words.

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Speaker 1: The question is does a reasonable person believe what the

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Speaker 1: anchors are telling them? If I'm thinking about speeding down

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Speaker 1: a street where children are playing, and the person who

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Speaker 1: is sitting next to me in the car tells me, oh,

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Speaker 1: those children are immortal gods. Even if you drive into

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Speaker 1: them at high speed, they won't be heard a bit. Uh,

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Speaker 1: I'm not entitled to believe that. Fox News Media said

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Speaker 1: in a statement that it plans to appeal as well

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Speaker 1: as file suit against Smartmatic under New York's anti slap law,

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Speaker 1: which bars the filing of cases intended to chill free speech.

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Speaker 1: Could there be a split verdict in this case a

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Speaker 1: jury find the individual host libel but not Fox for example,

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Speaker 1: or vice versa. With respect to each individual defendant, the

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Speaker 1: plaintiff has to prove recklessness. It's entirely possible that some

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Speaker 1: of the defendants and not others, are more demonstrably reckless.

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Speaker 1: The plaintiff has got to prove that with respect to

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Speaker 1: each individual defendant. There's also one point six billion dollar

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Speaker 1: suit by dominion against Fox. Then a Delaware judge refused

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Speaker 1: to dismiss. Does the two refusals to dismiss tell you anything.

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Speaker 1: It tells you that the allegations at least are enough

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Speaker 1: to go to trial. The allegation is recklessness. There is

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Speaker 1: some evidence to support it, and there is enough evidence

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Speaker 1: that this can reasonably be put in front of a jury.

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Speaker 1: If the plaintiffs had no evidence at all and no

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Speaker 1: likelihood of producing any such evidence, then the drug judge

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Speaker 1: would be obligated to dismiss. But there actually seems to

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Speaker 1: be substantial evidence. The Fox kept on broadcasting these allegations

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Speaker 1: against the voting machine companies with no basis at all

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Speaker 1: for believing that they were true. Dominion and Smart Manic

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Speaker 1: could show broadcast after broadcast after broadcast where these allegations

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Speaker 1: were made. They can show multiple broadcasts in which these

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Speaker 1: false allegations were made. Fox can defend by showing that

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Speaker 1: it had some basis for thinking. So the case that

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Speaker 1: the plaintiffs are going to make is that Fox had

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Speaker 1: no basis at all for believing that these allegations were true,

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Speaker 1: and to repeatedly broadcast such damaging allegations when you've got

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Speaker 1: no reason to think that they are true probably rises

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Speaker 1: to the standard of recklessness. So what are the Are

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Speaker 1: there any long term implications if this lawsuit succeeds. Do

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Speaker 1: you think it will stop people at Fox or at

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Speaker 1: other networks from making outrageous claims without a new proof. Well,

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Speaker 1: this recklessness standard has been the law for more than

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Speaker 1: fifty years, and news organizations are careful for the most

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Speaker 1: part about what they publish. News organizations routinely employ lawyers

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Speaker 1: to look over stories that might get one sued, and

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Speaker 1: the general rule within news offices is that if you've

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Speaker 1: got enough of a basis for making sometimes extremely damaging

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Speaker 1: allegations against particular public figures, then you go ahead and publish,

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Speaker 1: but the lawyers check to make sure that there is

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Speaker 1: some basis for thinking that what you are saying is true,

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Speaker 1: that you are not simply being reckless. I don't know

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Speaker 1: what Fox's lawyers were doing while all of this was

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Speaker 1: going on. There's been some talk, especially during the Palin trial,

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Speaker 1: that the effort was to get the case to the

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Speaker 1: Supreme Court because there are some justices on the Court

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Speaker 1: who might want to revisit the Sullivan standard. Uh, that's possible,

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Speaker 1: although the Palen case UH wasn't an appropriate vehicle to

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Speaker 1: do that because the Sullivan standard is also New York law,

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Speaker 1: and Palen sued in New York. UH towart suit in

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Speaker 1: New York is governed by the state law of New York,

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Speaker 1: which the U. S. Supreme Court has no jurisdiction over.

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Speaker 1: So the Palin case would not be an appropriate case

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Speaker 1: for reversing the standard of New York Times versus Sullivan

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Speaker 1: because there are independent and adequate grounds under state law

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Speaker 1: for the result. Even if the Palin case went up

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Speaker 1: to the Supreme Court and the Supreme Court wanted to

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Speaker 1: discard Sullivan, Palin would still lose under state law on

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Speaker 1: that basis. I contindently predict that the Supreme Court will

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Speaker 1: not take her case. Is the Sullivan standard in danger?

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Speaker 1: Is it too favorable to media organizations as I referred

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Speaker 1: to earlier To Supreme Court Justices Clarence Thomas and Neil

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Speaker 1: Gorsch call for the Court to reconsider New York Times v.

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Speaker 1: Sullivan in descents last July. So, what's your opinion of

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Speaker 1: the Sullivan standard. I think that the Sullivan standard has

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Speaker 1: been good for truthful reporting of news. Before the Sullivan standard, uh,

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Speaker 1: if I broadcast something that was false, even if I

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Speaker 1: was reasonable and a reasonable basis for thinking that it

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Speaker 1: was true, if it turned out to be false, I

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Speaker 1: could still be sued and I was liable regardless of

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Speaker 1: my state of mind. That had a real chilling effect

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Speaker 1: on truthful news reporting. So the court was right to

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Speaker 1: adopt the Sullivan standard because a pre existing defamation law

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Speaker 1: just didn't place any weight at all on the public's

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Speaker 1: interest in knowing the news. The earlier defamation standard was

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Speaker 1: crafted in Renaissance England, when there was a monarchy, there

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Speaker 1: was no democracy for the press to serve, and the

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Speaker 1: public interest in news just didn't figure at all in

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Speaker 1: the court's crafting of the law. The law has to

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Speaker 1: be different in a democracy. In a democracy, it has

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Speaker 1: to be okay to say derogatory things about public officials.

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Speaker 1: Thanks for being on the show. That's Professor Andrew Koppelman

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Speaker 1: of Northwestern Law School, and that's it for this edition

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Speaker 1: of the Bloomberg Law Show. Remember you can always get

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Speaker 1: the latest legal news on our Bloomberg Law podcast. You

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Speaker 1: can find them on Apple Podcasts, Spotify, and at www

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Speaker 1: dot bloomberg dot com, slash podcast, Slash Law, and remember

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Speaker 1: to tune into The Bloomberg Law Show every week night

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Speaker 1: at ten p m. Wall Street Time. I'm June Grossow,

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Speaker 1: and you're listening to Bloomberg