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

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Speaker 2: Colorado Solicitor General Shannon Stevenson defended the state's ban on

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Speaker 2: conversion therapy for minors at the Supreme Court. She argued

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Speaker 2: that the Constitution allows states to protect patients from harmful,

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Speaker 2: discredited treatments even if a regulation incidentally affects speech.

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Speaker 3: A healthcare provider cannot be free to violate the standard

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Speaker 3: of care just because they are using words, and a

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Speaker 3: state cannot be required to let its vulnerable young people

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Speaker 3: waste their time and money on an ineffective, harmful treatment

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Speaker 3: just because that treatment is delivered through words.

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Speaker 2: An evangelical Christian therapist is challenging the law, saying it

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Speaker 2: violates her free speech rights, and the court's conservative justices

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Speaker 2: appeared to agree with her, questioning the constitutionality of the law,

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Speaker 2: Chief Justice John Roberts and Justice Samuel Alito.

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Speaker 4: In other words, just because they're engaged in conduct doesn't

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Speaker 4: mean that their words aren't protected looks like blatant viewpoint discrimination.

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Speaker 2: Liberal Justices Sonya Soto Mayor and Katanji Brown Jackson were

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Speaker 2: the only justices who addressed the harms of conversion therapy

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Speaker 2: that every major medical association warns about.

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Speaker 5: There are studies that say that this advice does harm

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Speaker 5: the people emotionally and physically.

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Speaker 2: And Justice Jackson questioned why the Colorado law should be

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Speaker 2: struck down when in June the court upheld a different

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Speaker 2: measure from Tennessee that bans transition related treatments for transgender kids.

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Speaker 6: The regulations work in basically the same way, and the

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Speaker 6: question of scrutiny applies in both contexts, So it just

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Speaker 6: seems odd to me that we might have a different

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Speaker 6: result here.

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Speaker 2: My guest is First Amendment expert Caroline Mala Corbin, a

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Speaker 2: professor at the University of Miami Law School. Caroline, will

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Speaker 2: you explain conversion therapy and Colorado's law banning it?

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Speaker 7: As about half the states in the country have done.

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Speaker 7: Colorado banned something that has been called gay conversion therapy,

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Speaker 7: and it's the idea of trying to convince someone who

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Speaker 7: is gay that they're not actually gay, or trying to

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Speaker 7: convince someone who is trans that they're not actually trans.

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Speaker 7: And this approach to gay and trans people has been

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Speaker 7: proven to be very deleatorious for their mental well being,

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Speaker 7: and so states have forbidden it. They have made it

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Speaker 7: illegal for licensed medical professionals to provide this as part

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Speaker 7: of their practice of medicine. So, to be very clear,

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Speaker 7: it doesn't ban y from talking to people about sexual

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Speaker 7: orientation or gender identity, and it doesn't even ban the

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Speaker 7: therapists from talking about it in their own free time.

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Speaker 7: But if they are in the process of providing health

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Speaker 7: care services that they have been licensed to provide, they're

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Speaker 7: not allowed to try and convince gay people that they're

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Speaker 7: not gay, or trans people that they're not trans. That's

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Speaker 7: the law, and.

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Speaker 2: What's the fundamental issue in the case.

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Speaker 7: So you have this law. It says, if you're licensed

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Speaker 7: by the state, the state does not allow you to

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Speaker 7: do things that are contrary to the standard of care,

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Speaker 7: and so you cannot provide conversion therapy. And we have

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Speaker 7: this white Christian woman who argues that the ban forbids

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Speaker 7: her from providing the type of therapy that she wants

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Speaker 7: to practice. She gets help from Alliance to Friending Freedom.

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Speaker 7: And so the question for the court is does this

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Speaker 7: ban on this medical therapy violate the licensed practitioners free

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Speaker 7: speech rights? And so the question before the court is

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Speaker 7: does this ban on this medical therapy violate the licensed

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Speaker 7: practitioners free speech rights. And the legal question that makes

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Speaker 7: all the difference is whether providing conversion therapy is speech

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Speaker 7: or whether it's conduct. Because if it's speech, then it

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Speaker 7: implicates the free speech clause. In fact, it becomes presumptively unconstitutional. If,

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Speaker 7: on the other hand, it's considered conduct, then it doesn't

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Speaker 7: trigger the free speech clause and the government is likely

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Speaker 7: to be allowed to regulate it. So the million dollar

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Speaker 7: constitutional question is how should this practice of conversion therapy

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Speaker 7: be characterized? Is it speech or is it conduct? Now,

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Speaker 7: I just want to point out that the speech in

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Speaker 7: the colloquial sense doesn't always match speech in the constitutional sense.

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Speaker 7: So let me give you a couple of examples when

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Speaker 7: speech is not actually speech, which seems counterintuitive. And yet

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Speaker 7: if for example, you told national security secrets to a

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Speaker 7: foreign enemy, that's speech, but that it wouldn't be treated

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Speaker 7: as speech. It would be treated as the conduct of treason.

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Speaker 7: It's not protected by the free speech clause. Or for example,

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Speaker 7: a sign on a restaurant that said, we do not

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Speaker 7: hire fill in the blank, we do not hire black people,

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Speaker 7: or Latino people or Asian people. That's words, but that

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Speaker 7: would be considered speech, it would be considered the act

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Speaker 7: of discrimination. And so while it may seem really obvious

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Speaker 7: on its face, so well, this is words and therefore

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Speaker 7: it's speech, it's not quite as clear cut as the

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Speaker 7: Supreme Court is going to probably conclude.

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Speaker 2: It seems like there is almost universal agreement among those

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Speaker 2: who listen to the oral arguments that the Christian counselor

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Speaker 2: is going to win here.

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Speaker 7: I mean, clearly, whenever you have a white conservative Christian

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Speaker 7: arguing before the Supreme Court, they're going to win, especially

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Speaker 7: if the only thing that's stake, and I say only

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Speaker 7: from the Court's perspective is LGBTQ rights. They just don't care, right, So,

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Speaker 7: I think it was a foregone conclusion, apart from any

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Speaker 7: of the legal principles, that the white Christian woman was

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Speaker 7: going to win. You know, I never used to predict

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Speaker 7: the outcome of Supreme Court cases, but it seems the

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Speaker 7: pattern is so clear these days that I think one

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Speaker 7: could say with a certain degree of confidence that she's

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Speaker 7: going to win. And they're basically going to say this

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Speaker 7: is speech, and therefore it is presumptively unconstitutional, and only

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Speaker 7: if the government has a super compelling justification for its law,

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Speaker 7: and the law was the only way to accomplish its goals.

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Speaker 7: It's not going to win. In other words, it's going

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Speaker 7: to have to pass what is known as strict scrutiny,

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Speaker 7: and that is very hard to do. In the speech context.

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Speaker 2: It seemed like most of the discussion was about what

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Speaker 2: standard should be applied here.

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Speaker 7: Well, that's because if it is considered speech, then the

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Speaker 7: standard is going to be strict scrutiny. And if it

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Speaker 7: is not speech, then it's only going to be rational

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Speaker 7: basis scrutiny. So what level of scrutiny a court must

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Speaker 7: give to this law, how hard it looks at it,

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Speaker 7: questions it. The level of evidence the government needs to

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Speaker 7: provide will depend on whether it is speech or conduct,

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Speaker 7: because again, if it is speech, then it implicates the

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Speaker 7: free speech clause.

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Speaker 2: Is this a novel issue coming to the court? Have

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Speaker 2: they decided any similar cases?

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Speaker 7: The Supreme Court is not deciding this against a blank slate.

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Speaker 7: They have already considered the question of medical treatment and

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Speaker 7: speech conduct. But in the abortion context. So I want

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Speaker 7: to highlight that many states who are hostile to abortion,

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Speaker 7: one of the things that they require their abortion providers

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Speaker 7: to do is to give women certain information about abortion.

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Speaker 7: So for example, you have to let women know that

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Speaker 7: adoption is an option, or that fathers have to pay

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Speaker 7: child support. Other states have held that women have to

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Speaker 7: be told all the harms that may result from abortion,

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Speaker 7: some of which are not even medically accurate. But the

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Speaker 7: point I want to make here is that doctors challenge

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Speaker 7: this regulation on speech grounds and argued, the government is

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Speaker 7: forcing us to say things that are contrary to what

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Speaker 7: we believe is appropriate and correct. And you might think, well,

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Speaker 7: these are words and they're being forced to articulate a

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Speaker 7: particular viewpoint on things, for example, don't have an abortion,

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Speaker 7: you know, adopt your child out instead. That it too,

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Speaker 7: should be considered a regulation of speech that sort of

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Speaker 7: compels a viewpoint. It's a viewpoint based restriction and therefore

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Speaker 7: should trigger strict scrutiny and be presumptively unconstitutional. But that

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Speaker 7: is not what the Supreme Court did. What the Supreme

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Speaker 7: Court said is that these laws that compel doctors to

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Speaker 7: speak against their will and say things that they don't

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Speaker 7: want to say. The Supreme Court held that is not

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Speaker 7: a regulation of speech, that is actually a regulation of

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Speaker 7: the medical profect ess that only incidentally affects speech. So

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Speaker 7: they're decigning this case against a backdrop of the Supreme

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Speaker 7: Court already having held in a different context that speech

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Speaker 7: that is connected the provision of medical treatment is not

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Speaker 7: necessarily going to be treated like speech. And so you know, oh,

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Speaker 7: it just so happens. Right, then, if you're challenging something

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Speaker 7: that's anti abortion, it's not speech, But if you're challenging

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Speaker 7: something that's pro LGBT, it is speech.

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Speaker 2: The Supreme Court has been steadily rolling back protections for

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Speaker 2: gay and transgender people in recent terms. The last time

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Speaker 2: I can think of that LGBTQ writs one at the

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Speaker 2: Supreme Court was the boss Stock case in twenty twenty.

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Speaker 2: Is that the last time.

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Speaker 7: I think so, and I think they have really undermined

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Speaker 7: their their own credibility by so aggressively promoting a particular ideology,

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Speaker 7: and to do so at the expense of a marginalized

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Speaker 7: community is not to their honor. And let's be clear,

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Speaker 7: they get to pick and choose their cases. There was

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Speaker 7: nothing that require them to decide this case. I think

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Speaker 7: in addition to its long standing attack on the LGBT community,

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Speaker 7: I think we also are seeing here a real disparagement

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Speaker 7: of expertise, which we also saw in Screbetti, because to

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Speaker 7: be clear, there is a consensus in the medical community

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Speaker 7: that this therapy is really harmful, and yet they did

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Speaker 7: not seem to accept that. Instead, they kept pushing back

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Speaker 7: against this idea that the experts knew what they were

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Speaker 7: talking about, and certainly Alliance Defending Freedom is helping them

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Speaker 7: by producing all kinds of questionable claims about the reliability

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Speaker 7: of the science underlying the medical consensus. And to be sure,

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Speaker 7: the medical community has made errors in the past, but

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Speaker 7: if we have to rely on something, you know better

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Speaker 7: to rely on medical experts and the weight of the

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Speaker 7: medical community than a right wing political group.

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Speaker 2: And the decision here will implicate similar bands on conversion

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Speaker 2: therapy in twenty six other states. Thanks so much, Caroline.

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Speaker 2: That's Professor Caroline Malacorbin of the University of Miami Law School.

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Speaker 8: This is nothing more than a continuation of the president's

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Speaker 8: desperate weaponization of our justice system.

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Speaker 2: New York Attorney General Letitia James was inded in a

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Speaker 2: mortgage fraud case on Thursday, making her the second of

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Speaker 2: President Trump's perceived political enemies to be criminally charged. In

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Speaker 2: the Eastern District of Virginia. In two weeks, James infuriated

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Speaker 2: Trump by suing him and winning in a case alleging

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Speaker 2: that he built his business empire on lies about his wealth,

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Speaker 2: and the President had called for legal action against James,

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Speaker 2: former FBI Director James Comy, and Senator Adam Schiff. In

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Speaker 2: a message to Attorney General Pam Bondy on social media

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Speaker 2: last month, James called the charges baseless and a blatant

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Speaker 2: perversion of the justice system.

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Speaker 8: And the president's own public statements make clear that his

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Speaker 8: only goal is political retribution at any cost.

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Speaker 2: Joining me is Bloomberg Legal reporter Chris Strom. Chris, We've

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Speaker 2: been hearing about this investigation into James for months. What

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Speaker 2: are the two felonies they finally charged her with.

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Speaker 1: So government alleging that James lied on one of her

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Speaker 1: mortgage applications in which she said that one of her

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Speaker 1: homes in Norfolk, Virginia would be used as a secondary residence,

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Speaker 1: but she was really running it out, that's the allegation.

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Speaker 1: And so they brought forward two charges, one for bank

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Speaker 1: fraud and another for lying to a bank. So James

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Speaker 1: says that these charges are baseless and she's going to

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Speaker 1: contest them. The wild card here is that this was

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Speaker 1: not the property that was under scrutiny for so long.

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Speaker 1: This is another property and James and her lawyer haven't

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Speaker 1: really said what happened with this property.

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Speaker 2: Is a criminal case based on charges like these pretty rare.

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Speaker 1: Mortgage fraud is a legitimate federal charge. It's usually charged

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Speaker 1: as part of a larger criminal enterprise. What makes the

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Speaker 1: situation with James unique is that the amount of money

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Speaker 1: that is a leg edged to have been involved in

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Speaker 1: the fraud is so minor, and current and former prosecutors

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Speaker 1: say that the amount of money that's that issue here

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Speaker 1: is so small that it wouldn't ever be brought as

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Speaker 1: a standalone case. And so that's what makes the James

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Speaker 1: indictment so unique is that she is alleged to have

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Speaker 1: saved about nineteen thousand dollars by listing her property as

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Speaker 1: a secondary residence rather than a rental property. And the

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Speaker 1: dollar amount of nineteen thousand dollars in fraud is so small.

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Speaker 2: Let's talk about the backstory here, because the only signature

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Speaker 2: on the indictment is that of the newly installed interim

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Speaker 2: US Attorney for the Eastern District of Virginia. Lindsay Halligan,

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Speaker 2: a former Trump aid who was put into the role

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Speaker 2: a few weeks ago after Trump forced out her predecessor,

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Speaker 2: and in an unusual move, she personally presented the cases

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Speaker 2: against Ja James and call me to the grand jury.

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Speaker 2: That's something that US attorneys don't usually do.

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Speaker 9: Yeah.

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Speaker 1: The other thing that's really unique about this case is

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Speaker 1: that there was a US attorney who said that this

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Speaker 1: case should never have been brought forward, and he was

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Speaker 1: facing pressure to indict Letitia James as well as James Comy,

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Speaker 1: and he resigned. He had made it clear that after

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Speaker 1: looking over all of the documentation, that there wasn't sufficient

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Speaker 1: evidence to bring a case against Letitia James or James Comy,

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Speaker 1: but he was facing pressure from the White House and

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Speaker 1: from Trump officials inside the Justice Department, and he made

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Speaker 1: the decision to resign. And then Trump appointed one of

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Speaker 1: his top White House aides as the interim US attorney.

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Speaker 1: And so she just came into the position two weeks

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Speaker 1: ago and has already brought two indictments against two people

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Speaker 1: who Trump demanded be prosecuted. And she brought the indictment

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Speaker 1: over the objections of the career people who work for

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Speaker 1: the Eastern District of Virginia. And what's really interesting is

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Speaker 1: that none of the career prosecutors who work for the

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Speaker 1: Eastern District of Virginia signed on to either of the

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Speaker 1: indictments against James or Comy, and it was only Halligan

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Speaker 1: who presented these cases to the grand jury and signed

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Speaker 1: the documentation.

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Speaker 2: And there are a lot of other similarities between the

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Speaker 2: case against James and the case against Comy, and it

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Speaker 2: appears that there'll be some similar defense motions to dismiss

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Speaker 2: in both cases. Comy pleaded not guilty on Wednesday to

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Speaker 2: charges that he lied to lawmakers and obstructed a congressional proceeding.

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Speaker 2: You were in the courtroom for that arraignment, and Comy's

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Speaker 2: defense attorney outlined some of the grounds they would use

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Speaker 2: to try to get the charges dismissed.

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Speaker 1: His attorney is Patrick Fitzgerald, who is a very well known,

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Speaker 1: very respected lawyer, former US Attorney for Chicago, and he

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Speaker 1: made three main points that they are going to challenge.

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Speaker 1: That the case against Komi represents a vindictive prosecution and

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Speaker 1: a selective prosecution, and that the appointment of the interim

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Speaker 1: US attorney who brought the charge was unlawful. And so

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Speaker 1: they are going to move through those phases of challenges

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Speaker 1: and if they all fail, then they will go to

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Speaker 1: a speedy trial.

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Speaker 2: We've talked about how unusual Halligan's appointment was, but what

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Speaker 2: does Fitzgerald say it was unlawful?

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Speaker 1: The objection is that she was not a Justice Department

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Speaker 1: official before she was appointed. There are certain rules that

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Speaker 1: have to be followed when you are appointing a temporary

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Speaker 1: position within the Justice Department, and US attorneys need to

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Speaker 1: be Senate confirmed or they need to be given the

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Speaker 1: appointment by federal judges. It's allowed to have a temporary appointment,

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Speaker 1: but the temporary appointment must be somebody who comes from

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Speaker 1: within the Justice Department, which Lindsay Halligan does not.

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Speaker 2: So that's interesting because if the judge threw out the

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Speaker 2: indictment because she was not a legal appointee, I mean

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Speaker 2: the statute of limitations has run, they wouldn't be able

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Speaker 2: to bring the charges against him again.

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Speaker 1: Correct, The case would be completely dropped and there'd be

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Speaker 1: no ability to bring it back.

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Speaker 5: You know.

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Speaker 1: The only caveat is these are hard motions to win. Generally,

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Speaker 1: judges are hesitant to throw out cases that grand jury's

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Speaker 1: have returned. So the defense does face some obstacles to

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Speaker 1: being able to do it, but the rules of how

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Speaker 1: US attorneys are appointed in what they can actually do

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Speaker 1: raise legitimate questions for the defense to challenge the appointment

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Speaker 1: of Halligan.

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Speaker 2: And Letitia James could also use that argument, although since

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Speaker 2: there's no statute of Limitationan's problem in her case, prosecutors

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Speaker 2: could just refile the charges against her, and it does

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Speaker 2: seem like they would have similar grounds to dismiss on

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Speaker 2: vindictive or selective prosecution.

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Speaker 1: Yes, James has already said she's going to allege that

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Speaker 1: this is a selective and vindictive prosecution. She's going to

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Speaker 1: rely on many statements that Trump has made calling for

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Speaker 1: her to be indicted, including social media posts that Trump

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Speaker 1: made last month where he basically directed Attorney General Pam

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Speaker 1: Bondi to indict James, Tomy and Adam Schiff. And so

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Speaker 1: that will be one of the primary pieces of evidence

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Speaker 1: that her defense will use to say this was a

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Speaker 1: vindictive and selective prosecution.

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Speaker 2: James is going to be arraigned on October twenty fourth,

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Speaker 2: so we might learn more about her case at that time,

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Speaker 2: and you did learn at Comey's arraignment that they haven't

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Speaker 2: been given any additional details about the charges.

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Speaker 1: Secifically, the defense wants to know who Komy authorized to

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Speaker 1: provide information, and what information that person provided and who

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Speaker 1: it related to. In the indictment, it says that Komy

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Speaker 1: authorized person three to provide information about person one. It's

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Speaker 1: pretty clear from everything we know that person one is

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Speaker 1: actually Hillary Clinton. But what's not clear is who is

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Speaker 1: person three that actually provided the information. And Komi's defense

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Speaker 1: is saying that to this date they still have not

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Speaker 1: been told specifically the details of the indictment, which they

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Speaker 1: need to know in order to mount their defense.

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Speaker 2: The judge said, this doesn't appear to be an overly

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Speaker 2: complicated case. I mean, they can certainly give Komy the

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Speaker 2: name of the people in the indictment. I mean that

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Speaker 2: seems bare minimum.

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Speaker 1: Yeah, it was surprising that the government had not already

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Speaker 1: provided Komi and his lawyers with just the basic information

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Speaker 1: of who they allege Ko Me authorized to leak information.

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Speaker 1: And it really speaks to how unusual this case, you know,

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Speaker 1: has been from the start, and how there might be

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Speaker 1: a problem with the ability of the new US attorney

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Speaker 1: to manage this prosecution.

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Speaker 2: And speaking to that, the two prosecutors who have signed

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Speaker 2: on to handle the case are both based in North Carolina,

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Speaker 2: as opposed to the Eastern District of Virginia where the

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Speaker 2: case is taking place.

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Speaker 1: Yep, it's our understanding that most of the career officials

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Speaker 1: in the US Attorney's Office for the Eastern District of

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Speaker 1: Virginia looked at the case and determined that there wasn't

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Speaker 1: sufficient evidence to bring a case or go to the

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Speaker 1: grand jury and get an indictment, and so none of

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Speaker 1: them are willing to sign on to this case. And

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Speaker 1: the new US attorney, who has never prosecuted the case before,

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Speaker 1: then had to bring in, you know, assistant US attorneys

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Speaker 1: from another office in order to appear in court.

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Speaker 2: I don't know if I've ever heard of anything like

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Speaker 2: that happening before.

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Speaker 1: I haven't.

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Speaker 2: And another surprise for the defense, there's classified information involved

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Speaker 2: in the case.

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Speaker 1: So the new wrinkle was that the prosecution said that

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Speaker 1: there's a large amount of discovery material that they have

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Speaker 1: to sort through, which includes classified information. Up until now,

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Speaker 1: we had never heard them say that there is a

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Speaker 1: trove of classified information, and that could complicate the ability

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Speaker 1: of the case to move forward and also comy to

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Speaker 1: mount his defense because the government needs to work out

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Speaker 1: a process by which classified information can be shared with

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Speaker 1: Comy's defense team or provided to the judge under seal.

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Speaker 1: And I think everybody was surprised when the prosecution said

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Speaker 1: that they have classified information that they need to sort through,

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Speaker 1: and the judge quickly said he does not intend to

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Speaker 1: have a long delay, if any delay as a result

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Speaker 1: of needing to deal with classified information. The judges basically

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Speaker 1: ordered the prosecution team to get their act together well.

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Speaker 2: The judge said the trial date for January fifth, We'll

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Speaker 2: see if he can keep things moving. Thanks Chris. That's

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Speaker 2: Bloomberg Legal reporter Chris Strom. It's the most difficult decision

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Speaker 2: a criminal defendant has to make a trial, whether or

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Speaker 2: not to take the stand. And when a defendant decides

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Speaker 2: to take the risk of testifying, what role does his

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Speaker 2: attorney play. David Villarreale took the stand during his trial

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Speaker 2: in twenty eighteen for murdering his boyfriend, but when there

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Speaker 2: was an overnight break in his testimony, the judge barred

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Speaker 2: villa rial's attorney from discussing his testimony with him. He

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Speaker 2: was convicted, and in his appeal to the Supreme Court

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Speaker 2: Villarriale argues that the judge's order denied him effective assistance

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Speaker 2: of counsel in violation of the sixth Amendment. During the

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Speaker 2: oral arguments, the justices question just what a trial lawyer

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Speaker 2: could talk to his client about during an overnight break

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Speaker 2: in his testimony without crossing over into coaching the client's testimony.

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Speaker 2: Chief Justice John Roberts posed a hypothetical to the lawyer

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Speaker 2: for Texas about a defendant asking his attorney whether he

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Speaker 2: should stop testifying about Fred when he got back on

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Speaker 2: the stand.

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Speaker 4: And I notice every time I do that, you know,

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Speaker 4: Juring number eight gets a big frown and shakes his head.

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Speaker 4: He doesn't look to me like he likes the idea

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Speaker 4: of talking about Fred at all. So I think that's

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Speaker 4: a bad idea. Now, talking about Fred was your idea?

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Speaker 4: Do you still think it's a good idea. Can the

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Speaker 4: lawyer respond to that question?

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Speaker 9: No, they you would have to tell them, I'm omner

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Speaker 9: a core order not to out to answer.

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Speaker 4: So at that point he tells the defendant who's facing

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Speaker 4: the capital sentence, I'm not going to tell you.

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Speaker 2: And Justice Elaina Kagan wanted to know about a lawyer

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Speaker 2: giving his client some tips on his performance on the stand.

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Speaker 10: Do you think that council can say, listen, I've been

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Speaker 10: noticing that you've been mumbling, and you're also not making

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Speaker 10: eye contact with the questioner, and it would just be

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Speaker 10: a good idea if you'd stopped mumbling and made eye contact.

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Speaker 10: Can the lawyer do that in an overnight recess?

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Speaker 2: The appeals courts are split on whether so called non

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Speaker 2: conferral orders during overnight trial recesses are constitutional. Joining me

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Speaker 2: is former Manhattan prosecutor and criminal defense attorney Paul Callan

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Speaker 2: of counsel at Edelman and Edelman. Paul tell us about

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Speaker 2: the facts here.

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Speaker 9: The defendant, David Villarreal, was a meth addict allegedly who

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Speaker 9: stabs his boyfriend to death, and he goes to trial,

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Speaker 9: and something happened in that trial, and it's something that's

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Speaker 9: very common in the trial of civil and criminal cases,

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Speaker 9: and that is he was on the witness stand testifying,

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Speaker 9: and the judge decided to break for the day. It

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Speaker 9: was about one o'clock in the afternoon, and the judge

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Speaker 9: gave an instruction which suggested that the defense attorney should

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Speaker 9: not discuss testimony overnight with his clients because he was

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Speaker 9: on the witness stand, and later on he's convicted, sentenced

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Speaker 9: to sixty years in prison, and now he's seeking to

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Speaker 9: reverse the case, saying that instruction impeded his right to

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Speaker 9: consult with counsel pursuing to the sixth Amendment.

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Speaker 2: So there was a lot of talk during the oral

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Speaker 2: arguments about coaching your client. Is there a clear line

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Speaker 2: between what's permissible and what's impermissible when coaching a client

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Speaker 2: or preparing a client to testify.

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Speaker 9: Well, there's a line across and we call it subornation

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Speaker 9: of perjury if a lawyer goes too far in giving

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Speaker 9: advice to his client about how he should shape his testimony.

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Speaker 9: And so lawyers always have to deal with this situation

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Speaker 9: that they can't give advice that would constitute subornation of perjury.

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Speaker 9: Lawyers do, and it's their job to give a client

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Speaker 9: advice though, about how to testify on a witness stand,

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Speaker 9: how to conduct himself on the witness stand, how to

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Speaker 9: reactive as an objection made in court, all kinds of

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Speaker 9: technical aspects of testimony like that. Clearly lawyers are allowed

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Speaker 9: to give that kind of advice. But this is a

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Speaker 9: situation that comes up all the time. In both civil

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Speaker 9: and criminal cases. When there's a recess in the case,

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00:28:36,400 --> 00:28:38,600
Speaker 9: the client wants to talk to the lawyer.

441
00:28:38,320 --> 00:28:39,040
Speaker 7: How am I doing?

442
00:28:39,160 --> 00:28:41,480
Speaker 9: Am I doing okay on the witness stand, and the

443
00:28:41,600 --> 00:28:44,680
Speaker 9: lawyer wants to encourage them and say, yes, yes, you're

444
00:28:44,680 --> 00:28:47,840
Speaker 9: doing great, you know, or no, that was a stupid

445
00:28:47,880 --> 00:28:49,960
Speaker 9: answer you gave, you know, try to listen to the

446
00:28:50,040 --> 00:28:52,760
Speaker 9: questions that are being asked. So there are a variety

447
00:28:52,800 --> 00:28:56,680
Speaker 9: of ways that lawyers approach this thing, so the courts

448
00:28:56,720 --> 00:28:59,000
Speaker 9: really have gone back and forth on it. There are

449
00:28:59,320 --> 00:29:03,200
Speaker 9: some courts decisions saying that during the course of testimony,

450
00:29:03,240 --> 00:29:06,960
Speaker 9: if there's a brief recess fifteen twenty minute recess, you

451
00:29:07,000 --> 00:29:09,600
Speaker 9: can talk to your client, but you shouldn't discuss testimony

452
00:29:09,720 --> 00:29:13,600
Speaker 9: during that time period. When there's a long adjournment like overnight,

453
00:29:13,880 --> 00:29:17,080
Speaker 9: then it gets really tricky because really most lawyers think

454
00:29:17,120 --> 00:29:21,080
Speaker 9: they shouldn't be discussing testimony with the client. But there

455
00:29:21,120 --> 00:29:23,600
Speaker 9: may be other things that have to be discussed. Should

456
00:29:23,640 --> 00:29:27,080
Speaker 9: I recommend a plead because the testimony is going so badly.

457
00:29:27,400 --> 00:29:29,960
Speaker 9: Should I tell the witness that if he's going to

458
00:29:30,000 --> 00:29:32,960
Speaker 9: stick with this kind of a story, we need another witness,

459
00:29:33,040 --> 00:29:35,000
Speaker 9: you know, maybe he's got a friend who was refusing

460
00:29:35,000 --> 00:29:37,200
Speaker 9: to testify, but now you say, you know, he's got

461
00:29:37,200 --> 00:29:39,640
Speaker 9: to come in and testify given the way your testimony

462
00:29:39,680 --> 00:29:43,120
Speaker 9: is going. So there's sort of an interreaction between testimony

463
00:29:43,480 --> 00:29:46,920
Speaker 9: and even testimony that you're not trying to shape, and

464
00:29:47,280 --> 00:29:49,800
Speaker 9: how it affects other aspects of the case as the

465
00:29:49,800 --> 00:29:53,680
Speaker 9: case proceeds. So this is a really tricky question for lawyers,

466
00:29:53,800 --> 00:29:55,720
Speaker 9: and this will be a closely watched case.

467
00:29:56,160 --> 00:29:59,560
Speaker 2: Some of the justices seem to be leaning toward a

468
00:29:59,640 --> 00:30:03,680
Speaker 2: type of limited instruction where the lawyer is prohibited from

469
00:30:03,800 --> 00:30:08,880
Speaker 2: directly discussing the testimony with the client during an overnight break,

470
00:30:09,080 --> 00:30:13,680
Speaker 2: but is allowed to discuss broader trial strategies and issues

471
00:30:13,720 --> 00:30:18,080
Speaker 2: that relate to testimony, and Villa Reale's attorney argued that

472
00:30:18,080 --> 00:30:21,840
Speaker 2: that rule is unworkable in the real world, and just

473
00:30:21,880 --> 00:30:26,000
Speaker 2: as Sonya Sotmayor gave an example of a lawyer suggesting

474
00:30:26,040 --> 00:30:28,280
Speaker 2: that a client take a plea in the middle of

475
00:30:28,320 --> 00:30:31,320
Speaker 2: his testimony, that showed why it's unworkable.

476
00:30:32,000 --> 00:30:37,120
Speaker 5: I find it impossible for a lawyer to say I

477
00:30:37,240 --> 00:30:40,680
Speaker 5: think you should consider a plea bargain now, and that

478
00:30:40,720 --> 00:30:43,800
Speaker 5: the defendant is not going to say, but why, and

479
00:30:43,840 --> 00:30:47,400
Speaker 5: the why has to be my considered judgment that gets

480
00:30:47,400 --> 00:30:52,000
Speaker 5: me from here to the corner and back with nobody

481
00:30:52,040 --> 00:30:56,800
Speaker 5: paying me. Okay, you need to say something. The model

482
00:30:56,880 --> 00:31:00,200
Speaker 5: rule says a lawyer shall explain a matter to the

483
00:31:00,240 --> 00:31:04,400
Speaker 5: extent reasonably necessary to make an informed decision.

484
00:31:05,480 --> 00:31:08,479
Speaker 2: I mean it's very hard to draw a line in

485
00:31:08,520 --> 00:31:09,680
Speaker 2: these circumstances.

486
00:31:10,840 --> 00:31:13,840
Speaker 9: Yes, Villaryal's lawyer made a very compelling argument in that

487
00:31:13,880 --> 00:31:18,000
Speaker 9: regard because so much of the client's testimony. I mean,

488
00:31:18,040 --> 00:31:19,800
Speaker 9: if you put a defendant on the witness stand in

489
00:31:19,840 --> 00:31:23,720
Speaker 9: a criminal case, his testimony is now the key evidence

490
00:31:23,760 --> 00:31:27,920
Speaker 9: of the entire case. And if it triggers problems, that

491
00:31:28,040 --> 00:31:30,160
Speaker 9: may cause you as a lawyer to have to go

492
00:31:30,280 --> 00:31:33,640
Speaker 9: out and get another witness or maybe bring in some

493
00:31:33,720 --> 00:31:36,600
Speaker 9: kind of an expert because he's raised something about the

494
00:31:36,600 --> 00:31:40,240
Speaker 9: impossibility of how a bullet was fired or was aimed

495
00:31:40,280 --> 00:31:42,680
Speaker 9: when the murder's shot was fired, or the stab wound

496
00:31:42,720 --> 00:31:45,840
Speaker 9: it would be in this case. Yeah, the testimony interacts

497
00:31:45,880 --> 00:31:48,760
Speaker 9: from the legal standpoint with all of the evidence in

498
00:31:48,800 --> 00:31:52,400
Speaker 9: the case. So you restrict the lawyer's ability to talk

499
00:31:52,440 --> 00:31:55,000
Speaker 9: to the client. You can't just keep it down to

500
00:31:55,080 --> 00:31:58,360
Speaker 9: the testimony alone. Everything interacts with everything else. That's what

501
00:31:58,480 --> 00:32:00,360
Speaker 9: build in the way of his lawyers are off arguing.

502
00:32:00,800 --> 00:32:05,560
Speaker 2: Justice Elena Kagan asked this of Texas's lawyer, do you

503
00:32:05,560 --> 00:32:08,720
Speaker 2: think that counsel can say, listen, I've been noticing that

504
00:32:08,760 --> 00:32:12,240
Speaker 2: you've been mumbling and you're also not making eye contact

505
00:32:12,240 --> 00:32:14,640
Speaker 2: with the questioner, and it would just be a good

506
00:32:14,680 --> 00:32:18,240
Speaker 2: idea if you'd stop mumbling and made eye contact. Can

507
00:32:18,280 --> 00:32:22,240
Speaker 2: the lawyer do that in an overnight recess? Texas's attorney

508
00:32:22,240 --> 00:32:25,200
Speaker 2: said no, I would consider that to be coaching their

509
00:32:25,280 --> 00:32:29,040
Speaker 2: testimony as far as how you present yourself to the jury.

510
00:32:29,400 --> 00:32:33,040
Speaker 2: Of course, he's defending the conviction for Texas, so he's

511
00:32:33,080 --> 00:32:35,960
Speaker 2: coming at the question from a different angle. But do

512
00:32:36,040 --> 00:32:37,280
Speaker 2: you think that would be coaching.

513
00:32:37,920 --> 00:32:40,960
Speaker 9: Well, whether it's coaching or not, I don't know. It

514
00:32:41,040 --> 00:32:43,920
Speaker 9: probably is coaching. But that kind of coaching is exactly

515
00:32:43,960 --> 00:32:46,120
Speaker 9: what you get hired to do as a lawyer, to

516
00:32:46,640 --> 00:32:50,360
Speaker 9: school your client in how he can present his truthful

517
00:32:50,480 --> 00:32:54,120
Speaker 9: testimony in the best way possible to the jury. And

518
00:32:54,640 --> 00:32:58,800
Speaker 9: I think most lawyers view this situation where a client

519
00:32:58,880 --> 00:33:02,120
Speaker 9: is on the witness stand, they will not often tamper

520
00:33:02,280 --> 00:33:06,120
Speaker 9: with the content of the testimony in their discussions with

521
00:33:06,160 --> 00:33:10,000
Speaker 9: the client. But they may say, listen, stop looking down.

522
00:33:10,200 --> 00:33:13,040
Speaker 9: It's making you look guilty. Look at a guy who's

523
00:33:13,080 --> 00:33:15,720
Speaker 9: asking you the question. And it's okay to glance over

524
00:33:15,760 --> 00:33:18,280
Speaker 9: at the jurors from time to time with your head up.

525
00:33:18,520 --> 00:33:21,440
Speaker 9: And I mean, this just has to do with presentation

526
00:33:22,160 --> 00:33:24,800
Speaker 9: of the testimony to the jury as opposed to the

527
00:33:24,840 --> 00:33:27,400
Speaker 9: true or falsity of the testimony. And I think that's

528
00:33:27,440 --> 00:33:31,920
Speaker 9: perfectly proper that kind of instruction to a client during testimony.

529
00:33:32,200 --> 00:33:35,080
Speaker 2: Of course, you can never tell for sure from oral

530
00:33:35,200 --> 00:33:38,640
Speaker 2: arguments how the justices will rule, but it seemed to

531
00:33:38,680 --> 00:33:43,480
Speaker 2: me that the defendant didn't have five votes, that the

532
00:33:43,520 --> 00:33:47,760
Speaker 2: majority of the justices were skeptical that not being able

533
00:33:47,800 --> 00:33:51,680
Speaker 2: to talk to his counsel about his testimony during the

534
00:33:51,760 --> 00:33:55,160
Speaker 2: overnight break violated his constitutional rights.

535
00:33:55,600 --> 00:33:58,600
Speaker 9: Well, i'll tell you and my suspicion is maybe they

536
00:33:58,840 --> 00:34:00,800
Speaker 9: just want to stay away from the whole thing, because

537
00:34:01,200 --> 00:34:03,720
Speaker 9: I suspect that the truth of the matter is there's

538
00:34:03,760 --> 00:34:06,800
Speaker 9: nobody in that room at night when the lawyer is

539
00:34:06,840 --> 00:34:11,160
Speaker 9: discussing the testimony with the client, and this rule is

540
00:34:11,200 --> 00:34:14,839
Speaker 9: a really hard rule to enforce. I suppose you might

541
00:34:14,920 --> 00:34:18,400
Speaker 9: have a lot more appeals in cases from defendants who

542
00:34:18,440 --> 00:34:21,400
Speaker 9: would say I was on the stand and I needed

543
00:34:21,440 --> 00:34:25,160
Speaker 9: advice and the lawyer refused to talk to me, and

544
00:34:25,239 --> 00:34:28,080
Speaker 9: that's why I've been convicted, you know what Philip Reality

545
00:34:27,920 --> 00:34:31,520
Speaker 9: is saying. So it's a touchy subject and it'll be

546
00:34:31,520 --> 00:34:33,440
Speaker 9: interesting to see how the court rules on this thing.

547
00:34:33,640 --> 00:34:36,919
Speaker 9: Trial lawyers across the country will be watching very very

548
00:34:36,920 --> 00:34:40,200
Speaker 9: carefully because there are lots of disuse. It happens to

549
00:34:40,239 --> 00:34:43,000
Speaker 9: civil cases too, during depositions. You know, you have a

550
00:34:43,040 --> 00:34:46,520
Speaker 9: civil case and the guys being deposed and then they

551
00:34:46,520 --> 00:34:48,799
Speaker 9: wanted to take a break, and the lawyer says, well,

552
00:34:48,800 --> 00:34:51,319
Speaker 9: don't talk to him during the break. And the lawyer says, well,

553
00:34:51,320 --> 00:34:53,120
Speaker 9: you have no right to restrict what I can say

554
00:34:53,120 --> 00:34:55,680
Speaker 9: to my client during the break. And I've seen fights

555
00:34:55,719 --> 00:34:59,319
Speaker 9: among lawyers, oral arguments among lawyers at depositions about this

556
00:34:59,440 --> 00:35:02,280
Speaker 9: very subject. So this one will spill over into civil

557
00:35:02,320 --> 00:35:04,840
Speaker 9: practice as well. I think if they make a definitive

558
00:35:05,080 --> 00:35:06,239
Speaker 9: ruling on the issue.

559
00:35:06,719 --> 00:35:08,880
Speaker 2: Is there an ethical rule that you shouldn't talk to

560
00:35:08,960 --> 00:35:11,359
Speaker 2: your client during a break in testimony.

561
00:35:11,840 --> 00:35:15,080
Speaker 9: There are no ethical rules about it, other than of

562
00:35:15,160 --> 00:35:20,160
Speaker 9: course a lawyer cannot suborn perjury. So if you're giving

563
00:35:20,480 --> 00:35:24,440
Speaker 9: the client advice, you know he's asserting, say, self defense

564
00:35:24,600 --> 00:35:27,040
Speaker 9: in a case, and he tells you a story in

565
00:35:27,080 --> 00:35:30,239
Speaker 9: which he's not under threat from the person he killed

566
00:35:30,280 --> 00:35:32,520
Speaker 9: at all, and you say to him, well, you know

567
00:35:32,560 --> 00:35:34,799
Speaker 9: it would help if you thought he was trying to

568
00:35:34,800 --> 00:35:37,320
Speaker 9: strangle you when you pulled out the knife and started

569
00:35:37,480 --> 00:35:40,920
Speaker 9: stabbing him, Well, that would be unethical, your subborning perjury.

570
00:35:40,920 --> 00:35:42,880
Speaker 9: You're telling him tell a lie to say that you

571
00:35:42,960 --> 00:35:45,399
Speaker 9: were in fear of your life, that's why you killed him.

572
00:35:45,880 --> 00:35:48,279
Speaker 9: So you know, those are the only ethical rules that

573
00:35:48,360 --> 00:35:53,200
Speaker 9: apply in terms of shaping testimony. By saying be more polite,

574
00:35:53,360 --> 00:35:55,920
Speaker 9: you know you're yelling at the prosecutor. Don't do that.

575
00:35:56,000 --> 00:35:58,400
Speaker 9: It makes you look aggressive and bad. I'm telling you

576
00:35:58,400 --> 00:36:03,040
Speaker 9: about stylistic question and advice from the attorney. You know,

577
00:36:03,120 --> 00:36:05,120
Speaker 9: I think that's something that all lawyers do to a

578
00:36:05,120 --> 00:36:08,560
Speaker 9: certain extent with clients, and it's probably okay, and that fact,

579
00:36:08,560 --> 00:36:10,719
Speaker 9: the courts may like it because if you get a

580
00:36:10,760 --> 00:36:12,920
Speaker 9: long winded client, it won't give you a straight answer

581
00:36:12,960 --> 00:36:15,000
Speaker 9: to a question. A lot of times the judges are

582
00:36:15,080 --> 00:36:17,840
Speaker 9: quite apple. As the client listens carefully to the question,

583
00:36:17,960 --> 00:36:21,799
Speaker 9: and answers it succinctly, as opposed to wandering around and

584
00:36:21,840 --> 00:36:24,680
Speaker 9: telling all of these lengthy stories, which, by the way,

585
00:36:25,080 --> 00:36:28,440
Speaker 9: just open up new avenues across examination for the prosecutor.

586
00:36:28,680 --> 00:36:31,680
Speaker 9: You know, clients testifying is one of the most complex

587
00:36:31,760 --> 00:36:33,799
Speaker 9: issues of criminal law and always will be.

588
00:36:34,239 --> 00:36:38,040
Speaker 2: And only Justice Katanji Brown Jackson was a criminal defense

589
00:36:38,160 --> 00:36:41,279
Speaker 2: lawyer who might have faced some of these problems with

590
00:36:41,400 --> 00:36:45,440
Speaker 2: a client testifying. She was an assistant public defender in

591
00:36:45,600 --> 00:36:49,319
Speaker 2: d C. Justice Sonya so Tomayor is the only other

592
00:36:49,440 --> 00:36:52,200
Speaker 2: trial lawyer on the court, and she was a Manhattan

593
00:36:52,200 --> 00:36:55,280
Speaker 2: District attorney like you. Paul, thanks so much for joining

594
00:36:55,280 --> 00:36:59,280
Speaker 2: me today. That's Paul Callen, former Manhattan prosecutor and criminal

595
00:36:59,280 --> 00:37:01,719
Speaker 2: defense attorney. And that's it for this edition of The

596
00:37:01,760 --> 00:37:04,720
Speaker 2: Bloomberg Law Show. Remember you can always get the latest

597
00:37:04,760 --> 00:37:07,879
Speaker 2: legal news on our Bloomberg Law podcasts. You can find

598
00:37:07,880 --> 00:37:12,480
Speaker 2: them on Apple Podcasts, Spotify, and at www dot Bloomberg

599
00:37:12,520 --> 00:37:16,319
Speaker 2: dot com, slash podcast Slash Law, And remember to tune

600
00:37:16,320 --> 00:37:19,560
Speaker 2: into The Bloomberg Law Show every weeknight at ten pm

601
00:37:19,640 --> 00:37:23,200
Speaker 2: Wall Street Time. I'm June Grosso and you're listening to

602
00:37:23,239 --> 00:37:23,759
Speaker 2: Bloomberg