1 00:00:03,200 --> 00:00:08,480 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio. 2 00:00:09,240 --> 00:00:12,360 Speaker 1: New York City Mayor Bill de Blasio can bar thousands 3 00:00:12,360 --> 00:00:16,160 Speaker 1: of unvaccinated teachers and other public school workers from their 4 00:00:16,280 --> 00:00:19,799 Speaker 1: jobs after the Second Circuit Court of Appeals lifted a 5 00:00:19,880 --> 00:00:23,520 Speaker 1: temporary injunction preventing such a move. There is going to 6 00:00:23,560 --> 00:00:27,000 Speaker 1: be a full procedure UH in the course of this week, 7 00:00:27,440 --> 00:00:32,120 Speaker 1: and we're very, very confident that the city part education 8 00:00:32,240 --> 00:00:35,520 Speaker 1: is going to prevail because we're trying to protect kids, 9 00:00:35,880 --> 00:00:38,320 Speaker 1: We're trying to protect families, were trying to protect working 10 00:00:38,360 --> 00:00:41,640 Speaker 1: people in our schools. We've been in court with this 11 00:00:42,040 --> 00:00:45,159 Speaker 1: very same set information, very same argument at both the 12 00:00:45,200 --> 00:00:48,760 Speaker 1: state and the federal level. We've won previously. We expect 13 00:00:48,840 --> 00:00:52,400 Speaker 1: to win again and quickly. The Appellate Court gave no 14 00:00:52,520 --> 00:00:55,600 Speaker 1: reason for the decision on Monday, other than saying the 15 00:00:55,640 --> 00:00:59,800 Speaker 1: injunction that had been entered last Friday was for administrative purposes. 16 00:01:00,160 --> 00:01:04,000 Speaker 1: This is all about the preliminary injunction. The underlying legal 17 00:01:04,040 --> 00:01:07,600 Speaker 1: and constitutional challenges to the city policy are yet to 18 00:01:07,640 --> 00:01:11,200 Speaker 1: be heard. The practical effect that the largest school district 19 00:01:11,280 --> 00:01:14,880 Speaker 1: in the country may now insist that all school employees 20 00:01:14,920 --> 00:01:18,880 Speaker 1: and contractors be vaccinated. The mandate will go into effect 21 00:01:18,920 --> 00:01:22,479 Speaker 1: on Friday at day's end. Joining me is Dorrit Reese, 22 00:01:22,520 --> 00:01:25,200 Speaker 1: a law professor at you see Hastings College of Law 23 00:01:25,280 --> 00:01:29,399 Speaker 1: who specializes in vaccine policy. Were you surprised at the 24 00:01:29,480 --> 00:01:33,320 Speaker 1: second Circuit is allowing the vaccine mandate to go into effect? 25 00:01:34,480 --> 00:01:37,679 Speaker 1: Not really. My reading of the initial decision was the 26 00:01:37,720 --> 00:01:40,479 Speaker 1: Second Circuit was coming in with the view that they 27 00:01:40,480 --> 00:01:44,080 Speaker 1: needed a little more time to consider this. But these 28 00:01:44,080 --> 00:01:49,120 Speaker 1: preliminary measures are unusual. Most of the time courts don't 29 00:01:49,160 --> 00:01:51,800 Speaker 1: stay a measure well, gratification is going on, and the 30 00:01:51,840 --> 00:01:55,160 Speaker 1: bark of them is pretty high, So I was not so. 31 00:01:55,360 --> 00:01:58,520 Speaker 1: In this challenge, the public school teachers and aids claim 32 00:01:58,600 --> 00:02:02,680 Speaker 1: the requirement for a vaccine violates their right to pursue 33 00:02:02,720 --> 00:02:06,520 Speaker 1: their profession and discriminates against them. What's your take on 34 00:02:06,600 --> 00:02:09,160 Speaker 1: that argument. Neither of those is a very good argument. 35 00:02:09,440 --> 00:02:12,200 Speaker 1: The first part the valid their professions. They're trying to 36 00:02:12,240 --> 00:02:15,200 Speaker 1: make a constitutional argument that it goes against the constitutional rights. 37 00:02:15,400 --> 00:02:17,680 Speaker 1: The problem they have run into it that the standards 38 00:02:17,680 --> 00:02:21,920 Speaker 1: for public health measures that limit individual rights is historically 39 00:02:22,120 --> 00:02:26,040 Speaker 1: the standard set in Jacobson versus Massachusetts from nine five, 40 00:02:26,320 --> 00:02:30,440 Speaker 1: and that's a very lenient center towards the policymakers. The 41 00:02:30,480 --> 00:02:33,840 Speaker 1: policymakers can limit individual rights in the public health under 42 00:02:33,880 --> 00:02:38,000 Speaker 1: it as long as the lives are reasonable, and teachers 43 00:02:38,280 --> 00:02:41,399 Speaker 1: co vaccine mandates in the middle of a pandemic when 44 00:02:41,440 --> 00:02:43,880 Speaker 1: many of the children can't be vaccimated, yet, it's probably 45 00:02:43,880 --> 00:02:46,839 Speaker 1: going to be found in reasonable. The second argument, discrimination 46 00:02:46,919 --> 00:02:51,720 Speaker 1: argument is even weaker, and here's why. First, unvaccinated workers 47 00:02:51,720 --> 00:02:56,440 Speaker 1: are not situated similarly to vaccinated workers. Discrimination means treating 48 00:02:56,480 --> 00:03:01,440 Speaker 1: the like case differently, but unvaccinated teachers the gnostages similarly 49 00:03:01,440 --> 00:03:05,160 Speaker 1: to vaccinated features. Unvaccinated features are at higher bits of 50 00:03:05,240 --> 00:03:09,040 Speaker 1: getting combinating the vaccinating features, and it's higher is of 51 00:03:09,160 --> 00:03:12,560 Speaker 1: completing it to the students, so they're not in the 52 00:03:12,600 --> 00:03:16,400 Speaker 1: same category. And it's not any more discriminations than given 53 00:03:16,520 --> 00:03:20,000 Speaker 1: tickets for jaywalking just to jaywalkers and not to people 54 00:03:20,000 --> 00:03:24,600 Speaker 1: who stand on the sidewalk. Second, even if their distinction 55 00:03:24,880 --> 00:03:27,760 Speaker 1: wasn't as strong as it is, being an unvaccinated teature 56 00:03:27,840 --> 00:03:31,079 Speaker 1: is not a protective category. Choosing not to vaccinate. It's 57 00:03:31,160 --> 00:03:34,040 Speaker 1: not equivalent to being part of a racial groups, part 58 00:03:34,080 --> 00:03:37,400 Speaker 1: of religious groups, et cetera. So that's Clay two isn't 59 00:03:37,520 --> 00:03:41,120 Speaker 1: very strong. Is the most recent Supreme Court precedent that 60 00:03:41,680 --> 00:03:47,360 Speaker 1: nineteen o five case that upheld in Massachusetts smallpox vaccination law. 61 00:03:48,400 --> 00:03:52,040 Speaker 1: So we refer to Jacobson because it's been a help 62 00:03:52,080 --> 00:03:55,040 Speaker 1: and relied on in many cases. Sees, it's still the 63 00:03:55,120 --> 00:03:59,200 Speaker 1: case that's often cited in discussions of public health. So 64 00:04:00,000 --> 00:04:03,080 Speaker 1: at it's a really old case. The conclusions are echoed 65 00:04:03,080 --> 00:04:06,400 Speaker 1: in a lot of more recent cases, so it's the 66 00:04:06,480 --> 00:04:10,640 Speaker 1: latest case directly on points, but it has a very 67 00:04:10,760 --> 00:04:14,080 Speaker 1: strong progeny and a very strong history. Seat is there 68 00:04:14,120 --> 00:04:16,880 Speaker 1: a difference when the vaccine mandate comes from the federal 69 00:04:16,960 --> 00:04:20,240 Speaker 1: government as opposed to the state, your city, so federal 70 00:04:20,360 --> 00:04:22,760 Speaker 1: versus locales there is a difference, but it's not in 71 00:04:22,800 --> 00:04:26,240 Speaker 1: the sermon constitutional rights, the constitutional writers, students, and the 72 00:04:26,240 --> 00:04:29,000 Speaker 1: different who applies to both state and face. However, the 73 00:04:29,040 --> 00:04:32,920 Speaker 1: Special Government has to face additions constraints. The sedial government 74 00:04:32,960 --> 00:04:35,200 Speaker 1: is one of limps with power, and it can only 75 00:04:35,240 --> 00:04:38,960 Speaker 1: act within the sermy powers, the main part to regulates 76 00:04:39,000 --> 00:04:42,200 Speaker 1: public health life with the state. The special government can 77 00:04:42,240 --> 00:04:44,680 Speaker 1: do some of it under its other powers, such as 78 00:04:44,720 --> 00:04:47,640 Speaker 1: the parts who regulates inter state commerce. The parts to 79 00:04:47,720 --> 00:04:52,280 Speaker 1: regulate interstate trouble, the power to add conditions when it 80 00:04:52,440 --> 00:04:55,080 Speaker 1: comes program. The federal government gives a lot of money 81 00:04:55,120 --> 00:04:57,560 Speaker 1: to the state for variety of things, and when it 82 00:04:57,640 --> 00:05:00,359 Speaker 1: gives money, it can do it with condition. So the 83 00:05:00,360 --> 00:05:03,520 Speaker 1: secial government has limited parties to act in the public health, 84 00:05:03,920 --> 00:05:06,440 Speaker 1: and you have to make sure any measority takes within 85 00:05:06,640 --> 00:05:11,440 Speaker 1: those powers. The Supreme Court denied review of Indiana University's 86 00:05:11,520 --> 00:05:15,560 Speaker 1: vaccine mandate for employees and students in the shadow docket, 87 00:05:15,960 --> 00:05:20,040 Speaker 1: but we also saw COVID restrictions struck down when it 88 00:05:20,160 --> 00:05:24,480 Speaker 1: was due to religious reasons. Do you have any doubt that, 89 00:05:24,680 --> 00:05:28,400 Speaker 1: let's say, if that case came to the Supreme Court now, 90 00:05:29,160 --> 00:05:32,200 Speaker 1: would they hold in the same way. I am very 91 00:05:32,200 --> 00:05:35,320 Speaker 1: sure that if the nineteen o five Jacobsen case came 92 00:05:35,360 --> 00:05:37,200 Speaker 1: to the Supreme Court now they would just help the 93 00:05:37,279 --> 00:05:40,520 Speaker 1: same way. As you correctly say, there's a number of 94 00:05:40,600 --> 00:05:43,160 Speaker 1: things that go under this, some of them are more 95 00:05:43,200 --> 00:05:48,839 Speaker 1: complicated than others. First, Jacobson was eminently reasonable because it 96 00:05:49,040 --> 00:05:51,640 Speaker 1: was a small poxman imposed in the middle of an 97 00:05:51,640 --> 00:05:57,960 Speaker 1: outbreak against the very dangerous disease, and the function was moderate. 98 00:05:58,480 --> 00:06:01,760 Speaker 1: It's fine, so has made it an eadicate in many 99 00:06:01,760 --> 00:06:05,920 Speaker 1: ways to uphold you're correctly saying that there are different 100 00:06:05,960 --> 00:06:10,240 Speaker 1: rubrics here. Jacobson was not addressed under religious freedom. Jakobson 101 00:06:10,320 --> 00:06:13,480 Speaker 1: did not claim that he had religious objections to the vaccine. 102 00:06:13,760 --> 00:06:17,120 Speaker 1: He was worried that the vaccine was unsafe. Religious freedom 103 00:06:17,440 --> 00:06:20,679 Speaker 1: wasn't at the time protected against the state, only against 104 00:06:20,720 --> 00:06:24,320 Speaker 1: the federal government, but today it is protected. Today is 105 00:06:24,360 --> 00:06:27,479 Speaker 1: protected against state actions, and the Supreme Court has been 106 00:06:27,520 --> 00:06:31,080 Speaker 1: a leverage student on religious freedom that separate from the 107 00:06:31,120 --> 00:06:35,560 Speaker 1: discipline's injury student. And right now it's unclear whether that 108 00:06:35,680 --> 00:06:40,120 Speaker 1: rest would require a religious exemption from a chteine mandate 109 00:06:40,200 --> 00:06:43,640 Speaker 1: that also had a medical exemption. It's just unclear. I 110 00:06:43,720 --> 00:06:46,160 Speaker 1: think a good reason to say no that you don't 111 00:06:46,200 --> 00:06:49,080 Speaker 1: have to be a religious exemption from a vaccine mandate 112 00:06:49,200 --> 00:06:53,760 Speaker 1: even if it has medical exemptions. First, because medical exemptions 113 00:06:53,800 --> 00:06:57,600 Speaker 1: are part of the framework that creates the mandate. The 114 00:06:57,720 --> 00:07:00,000 Speaker 1: goal of the mandate is to make sure that anyone 115 00:07:00,080 --> 00:07:03,480 Speaker 1: who can be safety vascinated is the vascinated to increase 116 00:07:03,839 --> 00:07:08,960 Speaker 1: rates of extination enough to prevent outbreaks. Medical exemptions are 117 00:07:09,000 --> 00:07:11,160 Speaker 1: part of that because they are apply to people who 118 00:07:11,240 --> 00:07:15,520 Speaker 1: cannot be safely back to me. Second, medical exemptions are 119 00:07:15,560 --> 00:07:20,920 Speaker 1: probably contusionally necessary under and third there's good You need 120 00:07:21,000 --> 00:07:25,200 Speaker 1: to think that mostly this exemputive excy are by people 121 00:07:25,240 --> 00:07:27,440 Speaker 1: whose of the position of exciti is not religious, but 122 00:07:27,520 --> 00:07:31,080 Speaker 1: most of them are instanced here, so requiring a religious 123 00:07:31,080 --> 00:07:34,720 Speaker 1: exemption from a safety measure in a case to where 124 00:07:34,960 --> 00:07:37,760 Speaker 1: we know there's going to be extensive abuse of the 125 00:07:37,840 --> 00:07:41,040 Speaker 1: exemption by people whose reasons are not religions totally further 126 00:07:41,120 --> 00:07:45,560 Speaker 1: than the Supreme courtile though, but that's an assessment. We 127 00:07:45,640 --> 00:07:47,280 Speaker 1: have to see what the Supreme Court will do with 128 00:07:47,320 --> 00:07:50,800 Speaker 1: a perfect A three judge federal panel is set to 129 00:07:50,840 --> 00:07:55,280 Speaker 1: consider whether to delay a vaccine mandate affecting healthcare work 130 00:07:55,320 --> 00:07:58,680 Speaker 1: or statewide in New York. That doesn't provide an exemption 131 00:07:58,720 --> 00:08:02,440 Speaker 1: for religious grounds. So you think that from what you 132 00:08:02,520 --> 00:08:06,600 Speaker 1: just said that that will pass muster that vaccine mandate 133 00:08:06,680 --> 00:08:09,920 Speaker 1: even though it doesn't provide a religious exemption. I think 134 00:08:09,920 --> 00:08:13,520 Speaker 1: it's unclear whether the fertile circuits will allow it. And 135 00:08:13,560 --> 00:08:15,920 Speaker 1: the reason is that the Supreme Court you students created 136 00:08:16,000 --> 00:08:21,000 Speaker 1: someone certainty. The Supreme Court basically provide us conflicting sources. 137 00:08:21,040 --> 00:08:24,600 Speaker 1: On one hand, in a series of shadow doctor cases 138 00:08:24,960 --> 00:08:28,920 Speaker 1: that we're not actually reason that didn't have the storic explanations. 139 00:08:29,080 --> 00:08:31,600 Speaker 1: The Supreme Court said, we don't want you to put 140 00:08:31,600 --> 00:08:35,120 Speaker 1: in place measures of treats religious house of worships. Differently, 141 00:08:35,720 --> 00:08:38,959 Speaker 1: on the other hand, in Cooken versus Study of Philadelphia case, 142 00:08:39,000 --> 00:08:42,319 Speaker 1: where the court directly asked, do you have to give 143 00:08:42,320 --> 00:08:46,520 Speaker 1: a religious exemption from a general law? A majority of 144 00:08:46,559 --> 00:08:50,160 Speaker 1: the Supreme Court said, we're keeping the old law for now, 145 00:08:50,280 --> 00:08:52,199 Speaker 1: the laws that says that you don't have to be 146 00:08:52,920 --> 00:08:56,000 Speaker 1: a religious exemption from a generally applicable laws. But there 147 00:08:56,120 --> 00:08:58,760 Speaker 1: was a very very strompt descent going the other way. 148 00:08:59,200 --> 00:09:02,120 Speaker 1: Not discent because everybody agree on the result in that case, 149 00:09:02,600 --> 00:09:04,920 Speaker 1: but there was a very strong set of judges that 150 00:09:05,000 --> 00:09:09,319 Speaker 1: would have liked to overturn that movie. So right now, 151 00:09:10,000 --> 00:09:12,040 Speaker 1: where is the Supreme Court will go? If it's directly 152 00:09:12,040 --> 00:09:14,439 Speaker 1: effects with the question here is a vaccine man, it 153 00:09:14,720 --> 00:09:17,200 Speaker 1: doesn't give a religious sugestion is a little bit unclear 154 00:09:17,559 --> 00:09:19,599 Speaker 1: and the second circuit to be acting to this and 155 00:09:19,720 --> 00:09:23,360 Speaker 1: certainty could go either way. More and more workers are 156 00:09:23,360 --> 00:09:27,200 Speaker 1: applying for religious exemptions. For example, in l A, about 157 00:09:27,200 --> 00:09:30,240 Speaker 1: a quarter of the police department is expected to seek 158 00:09:30,480 --> 00:09:35,600 Speaker 1: religious exemptions from vaccine mandates. Just explain what a worker 159 00:09:35,679 --> 00:09:39,679 Speaker 1: has to show in order to again a religious exemption. 160 00:09:40,160 --> 00:09:43,720 Speaker 1: So there's two parts to the religious exemptions claim. One 161 00:09:43,760 --> 00:09:45,760 Speaker 1: is it has to be religious and sweet has to 162 00:09:45,800 --> 00:09:49,880 Speaker 1: be stence here for religious the specialities, Streten suggests a 163 00:09:49,960 --> 00:09:54,839 Speaker 1: three part sept. First, a religious is about fundamental a 164 00:09:55,080 --> 00:09:58,800 Speaker 1: high level questions such as the meaning of life, things 165 00:09:58,840 --> 00:10:01,360 Speaker 1: like that, So it has to address those kinds of 166 00:10:01,480 --> 00:10:06,120 Speaker 1: high level ethical issues. Second, you can't just grab into 167 00:10:06,120 --> 00:10:09,160 Speaker 1: one religious birth. Your religious objection has to be part 168 00:10:09,160 --> 00:10:14,079 Speaker 1: of the comprehensive belief system. And Third, usually but not always, 169 00:10:14,240 --> 00:10:17,880 Speaker 1: religious is a companied by external science and right maybe 170 00:10:18,080 --> 00:10:20,480 Speaker 1: something you were, maybe something you do. Again, this is 171 00:10:20,480 --> 00:10:24,360 Speaker 1: not required. You can have very personal belief, but if 172 00:10:24,360 --> 00:10:27,080 Speaker 1: you have those help What is sest Is trying to 173 00:10:27,120 --> 00:10:30,559 Speaker 1: do is draw the line between things that are religious 174 00:10:30,600 --> 00:10:33,959 Speaker 1: and things that are strongly help believe but not religious, 175 00:10:34,000 --> 00:10:38,640 Speaker 1: without limiting religions to believe in a deity or multiple deities. 176 00:10:39,000 --> 00:10:42,680 Speaker 1: So that's the test for ISAs it's religions. The second 177 00:10:42,679 --> 00:10:45,559 Speaker 1: partion is since here and that's what think gets really hard, 178 00:10:46,200 --> 00:10:48,480 Speaker 1: and that's one of the reasons by the way against 179 00:10:48,480 --> 00:10:52,679 Speaker 1: inquiring religious subsemption. The problem is that the test for 180 00:10:52,800 --> 00:10:57,160 Speaker 1: sincereity does the person called the sinecure religious belief, not 181 00:10:57,520 --> 00:11:01,400 Speaker 1: does the religion object to the excins. So you can't 182 00:11:01,440 --> 00:11:04,640 Speaker 1: require a letter from ecourergy. You can't say if your 183 00:11:04,679 --> 00:11:07,400 Speaker 1: relieving support bos so, for example, if you're a Catholic 184 00:11:07,520 --> 00:11:11,160 Speaker 1: or a Jew, you don't have it will claim here. 185 00:11:11,600 --> 00:11:14,840 Speaker 1: You can't say your beliefy irrational. We're not going to 186 00:11:14,880 --> 00:11:18,320 Speaker 1: allow it because it's not about judging the rationality. That 187 00:11:18,400 --> 00:11:21,960 Speaker 1: makes it's really hard to police. And since we have 188 00:11:22,040 --> 00:11:24,839 Speaker 1: good reasons to think that most of these people are 189 00:11:25,080 --> 00:11:29,600 Speaker 1: opposing the vaccine not because of religiousisms, but because they've 190 00:11:29,600 --> 00:11:33,120 Speaker 1: read online misinformation that scared them off the vaccine, we 191 00:11:33,200 --> 00:11:37,200 Speaker 1: can't expect extensive views of this. And that means that 192 00:11:37,280 --> 00:11:41,199 Speaker 1: it's this exemption for our treats, which is why, as 193 00:11:41,240 --> 00:11:43,719 Speaker 1: you said, some states are saying we won't give it 194 00:11:43,760 --> 00:11:46,280 Speaker 1: any to them, and we know it's very vulnerable to abuse, 195 00:11:47,120 --> 00:11:49,480 Speaker 1: and we'll have to see where the court stands in 196 00:11:49,559 --> 00:11:52,240 Speaker 1: the with a vaccine mandate, when there's an option to 197 00:11:52,280 --> 00:11:57,000 Speaker 1: get vaccinated or to take regular coronavirus tests, that seems 198 00:11:57,040 --> 00:11:59,680 Speaker 1: to defeat the point of the mandate. Do you think 199 00:12:00,040 --> 00:12:04,880 Speaker 1: it still would require that there be that option. Mhm. So, 200 00:12:05,000 --> 00:12:07,360 Speaker 1: first of all, whether it decreads the point of the man, 201 00:12:07,400 --> 00:12:09,120 Speaker 1: that depends what the point of the man. That is. 202 00:12:09,679 --> 00:12:11,400 Speaker 1: If you can get to a point where the tests 203 00:12:11,400 --> 00:12:14,800 Speaker 1: are good enough that you can be reasonably sure the 204 00:12:14,840 --> 00:12:18,360 Speaker 1: person probably doesn't have coronavirus, the testing might be a 205 00:12:18,360 --> 00:12:21,880 Speaker 1: reasonable alternative. And the reason we are seeing a lot 206 00:12:21,920 --> 00:12:24,400 Speaker 1: of places of the testing is that it gives them 207 00:12:24,400 --> 00:12:26,679 Speaker 1: out to people who have very strong feeling against the 208 00:12:26,760 --> 00:12:29,959 Speaker 1: vaccine whilst putting in place something that makes refusing the 209 00:12:30,040 --> 00:12:33,280 Speaker 1: vaccine harder. It's a reasonable option. I don't think course 210 00:12:33,360 --> 00:12:36,600 Speaker 1: will require it, though, and that's because in some places 211 00:12:36,840 --> 00:12:40,240 Speaker 1: testing is not a good enough for options. First, it's 212 00:12:40,280 --> 00:12:43,400 Speaker 1: not clear that we have good enough testing to reliably 213 00:12:43,440 --> 00:12:45,679 Speaker 1: tell us who is inspecting who is not. Some people 214 00:12:46,080 --> 00:12:49,920 Speaker 1: don't test positive until a little into their inspections, but 215 00:12:49,960 --> 00:12:53,760 Speaker 1: they can be contagious before second vaccines and testing together, 216 00:12:53,800 --> 00:12:57,040 Speaker 1: as in LAS Latter proscurity. And I think court will 217 00:12:57,080 --> 00:13:00,240 Speaker 1: say this time of uncertainty, we will defer to the 218 00:13:00,280 --> 00:13:03,360 Speaker 1: decision maker, and if the decision makers it doesn't want 219 00:13:03,440 --> 00:13:06,839 Speaker 1: to allow testing options. They don't have to. They can 220 00:13:06,880 --> 00:13:11,560 Speaker 1: conclude reasonably that it's not a good enough options. Vaccine 221 00:13:11,600 --> 00:13:15,800 Speaker 1: mandates are being challenging state courts and federal courts all 222 00:13:15,840 --> 00:13:19,280 Speaker 1: across the country. Do you think that they're likely to 223 00:13:19,360 --> 00:13:23,760 Speaker 1: survive the court challenges? I think, but sine Mandy will 224 00:13:23,840 --> 00:13:27,360 Speaker 1: survive godly in the sense that mostly will be upheld. 225 00:13:27,760 --> 00:13:30,840 Speaker 1: I express there will be losses on an individual basis, 226 00:13:30,840 --> 00:13:34,400 Speaker 1: on refusing an individual religious extensions, or maybe on the 227 00:13:34,480 --> 00:13:38,640 Speaker 1: question of a religious freedom. But I expect the court 228 00:13:38,760 --> 00:13:43,480 Speaker 1: to give employers, states, the federal government quite a bit 229 00:13:43,520 --> 00:13:46,079 Speaker 1: of latitude in requiring but sin as long as so 230 00:13:46,200 --> 00:13:48,520 Speaker 1: for the federal governments of the question, are they overstepping 231 00:13:48,559 --> 00:13:51,560 Speaker 1: their parts? But other than that, I explained the course 232 00:13:51,600 --> 00:13:54,160 Speaker 1: to give quite a bit of latitudes. Because judges live 233 00:13:54,240 --> 00:13:57,480 Speaker 1: in this country as well, they see what's going on. 234 00:13:57,840 --> 00:14:00,480 Speaker 1: There are words as coven nights seems killed hundreds of 235 00:14:00,480 --> 00:14:04,520 Speaker 1: thousands Americans in the last two years, and they're likely 236 00:14:04,600 --> 00:14:08,840 Speaker 1: to understand why health authorities, why public health authorities and 237 00:14:08,840 --> 00:14:11,599 Speaker 1: other officials are doing. Are reaching for mandates as a 238 00:14:11,640 --> 00:14:16,800 Speaker 1: way to prove mandates aren't your ideal first option. I 239 00:14:16,880 --> 00:14:19,640 Speaker 1: hoped we wouldn't be where we are, and I think 240 00:14:19,760 --> 00:14:21,680 Speaker 1: a few of us are happy that we're still dealing 241 00:14:21,680 --> 00:14:26,520 Speaker 1: with coronavirus in plates. But when the diseases raising mandates 242 00:14:26,560 --> 00:14:28,960 Speaker 1: are in some ways the least worst options are better 243 00:14:29,040 --> 00:14:31,280 Speaker 1: than letting people die. Thanks for being on the Bloomberg 244 00:14:31,400 --> 00:14:34,200 Speaker 1: Law Show. That's dort Rees, a professor at you See 245 00:14:34,200 --> 00:14:39,520 Speaker 1: Hastings College of Law who specializes in vaccine policy. On 246 00:14:39,560 --> 00:14:42,960 Speaker 1: October eighteenth, Robert Durst will be returning to the Los 247 00:14:42,960 --> 00:14:46,600 Speaker 1: Angeles courtroom where a jury convicted him of the execution 248 00:14:46,680 --> 00:14:50,640 Speaker 1: style murder of a close friend, to be sentenced for decades. 249 00:14:50,720 --> 00:14:54,680 Speaker 1: Mysteries surrounded the millionaire real estate science who was suspected 250 00:14:54,760 --> 00:14:57,400 Speaker 1: not only of the murder of his friend, but also 251 00:14:57,480 --> 00:15:00,720 Speaker 1: in the disappearance of his first wife, and was actually 252 00:15:00,840 --> 00:15:03,720 Speaker 1: tried and acquitted of the shooting of his next door neighbor. 253 00:15:04,000 --> 00:15:07,360 Speaker 1: But there's no mystery about his sentence. The seventy eight 254 00:15:07,440 --> 00:15:10,480 Speaker 1: year old Durst must be sentenced to life in prison 255 00:15:10,640 --> 00:15:14,000 Speaker 1: without the possibility of parole, joining me as former federal 256 00:15:14,040 --> 00:15:18,240 Speaker 1: prosecutor Robert Mint's a partner McCarter and English. The jury 257 00:15:18,320 --> 00:15:22,840 Speaker 1: deliberated only about seven and a half hours in a 258 00:15:22,920 --> 00:15:28,760 Speaker 1: trial where the prosecution presented eighty witnesses and introduced nearly 259 00:15:29,000 --> 00:15:33,040 Speaker 1: three hundred exhibits. They also came back with special circumstances 260 00:15:33,160 --> 00:15:37,200 Speaker 1: on a twenty year old murder. How surprising is that, Well, 261 00:15:37,240 --> 00:15:40,560 Speaker 1: it was an incredibly lengthy trial, and there were quite 262 00:15:40,560 --> 00:15:43,200 Speaker 1: a few witnesses and a lot of evidence that was 263 00:15:43,240 --> 00:15:47,720 Speaker 1: presented over the course of the eleven week presentation by 264 00:15:47,760 --> 00:15:51,000 Speaker 1: the prosecution, and that was of course followed by weeks 265 00:15:51,000 --> 00:15:54,400 Speaker 1: of testimony by Mr Durst himself. But at the end 266 00:15:54,400 --> 00:15:58,600 Speaker 1: of the day, prosecutors used Durst's own words against him, 267 00:15:58,920 --> 00:16:01,760 Speaker 1: and in many ways he was the best witness for 268 00:16:01,920 --> 00:16:06,120 Speaker 1: the prosecution because they had all of this recorded testimony 269 00:16:06,200 --> 00:16:09,440 Speaker 1: from him. They had his own statements made to prosecutors 270 00:16:09,640 --> 00:16:12,600 Speaker 1: when he was arrested, They had the recordings they had 271 00:16:12,640 --> 00:16:15,640 Speaker 1: made while he was in jail, and perhaps most damning, 272 00:16:15,840 --> 00:16:19,360 Speaker 1: they had his recorded testimony that he made an HBO 273 00:16:19,520 --> 00:16:24,760 Speaker 1: documentary where he made statements that prosecutors argued were essentially 274 00:16:24,880 --> 00:16:28,000 Speaker 1: a confession to this crime. Was it a mistake to 275 00:16:28,040 --> 00:16:31,080 Speaker 1: put him on the stand. He testified to chopping up 276 00:16:31,080 --> 00:16:34,080 Speaker 1: the body of a Texas neighbor he killed in self defense. 277 00:16:34,400 --> 00:16:37,880 Speaker 1: To abandoning the body of his best friend after discovering 278 00:16:37,920 --> 00:16:41,160 Speaker 1: her dead, and he admitted that he would lie to 279 00:16:41,200 --> 00:16:43,080 Speaker 1: get out of trouble, and that he had lied during 280 00:16:43,120 --> 00:16:46,400 Speaker 1: sworn testimony in the past. Why put him on the stand. 281 00:16:47,000 --> 00:16:49,720 Speaker 1: That's a great question, and one of the biggest challenges 282 00:16:49,800 --> 00:16:53,720 Speaker 1: that defense lawyer's face in a criminal trial is whether 283 00:16:53,840 --> 00:16:56,680 Speaker 1: or not to put their client on the stand to 284 00:16:56,760 --> 00:17:01,520 Speaker 1: testify in their own defense. Generally, when defendants testify at 285 00:17:01,560 --> 00:17:04,359 Speaker 1: their own trial, it does not end well for them. 286 00:17:04,480 --> 00:17:08,040 Speaker 1: It gives prosecutors a chance to essentially retry their case 287 00:17:08,320 --> 00:17:11,280 Speaker 1: and to cross examine the defendant with all of the 288 00:17:11,359 --> 00:17:14,920 Speaker 1: evidence that prosecutors had already presented as part of their 289 00:17:14,960 --> 00:17:18,520 Speaker 1: case in chief. In this case, Mr Durst had testified 290 00:17:18,520 --> 00:17:21,440 Speaker 1: in his own defense in the trial in Galvesta where 291 00:17:21,440 --> 00:17:25,439 Speaker 1: he essentially beat back the charges of murdering a man 292 00:17:25,680 --> 00:17:30,159 Speaker 1: who was his roommate in Texas, and ultimately it was 293 00:17:30,200 --> 00:17:33,520 Speaker 1: the decision of Mr Durst to testify in his own 294 00:17:33,560 --> 00:17:36,120 Speaker 1: defense in this trial. We don't really know whether that 295 00:17:36,200 --> 00:17:39,080 Speaker 1: was over the objections of his own lawyers or not. 296 00:17:39,359 --> 00:17:41,600 Speaker 1: But this is a case where you had a witness 297 00:17:41,640 --> 00:17:45,720 Speaker 1: who was compelled to testify. He's obviously someone who longed 298 00:17:45,760 --> 00:17:48,720 Speaker 1: for the spotlight, and it seemed out of character for 299 00:17:48,840 --> 00:17:52,320 Speaker 1: him to sit by and not try to convince jurors 300 00:17:52,359 --> 00:17:55,359 Speaker 1: that he, in fact had not killed Susan Burman. Bob. 301 00:17:55,560 --> 00:17:57,960 Speaker 1: This was a twenty year old murder, and how often 302 00:17:57,960 --> 00:18:01,960 Speaker 1: are prosecutors able to bring cases in murder trials that 303 00:18:02,040 --> 00:18:06,119 Speaker 1: happened decades ago. Is this unusual? It's a highly unusual 304 00:18:06,160 --> 00:18:10,320 Speaker 1: case because not only did prosecutors have to prove that 305 00:18:10,520 --> 00:18:13,280 Speaker 1: Mr Durst was the murderer of Susan Burman, but they 306 00:18:13,359 --> 00:18:16,520 Speaker 1: essentially also had to try to prove that he had 307 00:18:16,600 --> 00:18:20,399 Speaker 1: killed his first wife, Katie McCormick, because the theory of 308 00:18:20,400 --> 00:18:24,440 Speaker 1: the prostitution's case was that Susan Burman was killed because 309 00:18:24,480 --> 00:18:27,639 Speaker 1: she had damning evidence against him about the fact that 310 00:18:27,680 --> 00:18:31,760 Speaker 1: he had killed his first wife. So prosecutors really had 311 00:18:31,800 --> 00:18:34,480 Speaker 1: to lay out the proof that he was involved and 312 00:18:34,600 --> 00:18:38,800 Speaker 1: responsible for both murders, not only the murder of Susan Berman, 313 00:18:38,840 --> 00:18:42,119 Speaker 1: which occurred in two thousand, but also the murder of 314 00:18:42,160 --> 00:18:44,600 Speaker 1: his wife, a case in which he had never been 315 00:18:44,680 --> 00:18:48,960 Speaker 1: charged and who disappeared in So this was a very 316 00:18:49,000 --> 00:18:53,119 Speaker 1: old case going back decades and decades, and were it 317 00:18:53,200 --> 00:18:58,040 Speaker 1: not for the unusual circumstances where Mr Durst had gone 318 00:18:58,200 --> 00:19:02,680 Speaker 1: on camera and made state and during that HBO documentary, 319 00:19:02,920 --> 00:19:05,280 Speaker 1: it's unlikely that he ever would have been charged and 320 00:19:05,320 --> 00:19:09,040 Speaker 1: convicted for Susan Burman's death. Durst was not in the 321 00:19:09,080 --> 00:19:13,600 Speaker 1: courtroom when the jury's verdict was read, and much was 322 00:19:13,680 --> 00:19:16,600 Speaker 1: made of it at the time. Does a defendant have 323 00:19:16,680 --> 00:19:19,439 Speaker 1: to be in the courtroom? Usually the defendant is in 324 00:19:19,480 --> 00:19:22,240 Speaker 1: the courtroom unless they are acting in a way that's 325 00:19:22,280 --> 00:19:25,320 Speaker 1: disruptive to the trial. But here, because of the very 326 00:19:25,359 --> 00:19:30,120 Speaker 1: unusual COVID protocols, we had a situation where people were 327 00:19:30,160 --> 00:19:34,240 Speaker 1: spread out throughout the courtroom. Very unusual steps were taken, 328 00:19:34,480 --> 00:19:37,359 Speaker 1: and in this case Mr Durst had been exposed to 329 00:19:37,440 --> 00:19:41,280 Speaker 1: somebody who had COVID and therefore was not president in 330 00:19:41,320 --> 00:19:44,440 Speaker 1: the courtroom when the verdict was read. Durst is appealing 331 00:19:44,480 --> 00:19:48,240 Speaker 1: on several grounds. One ground is that there was insufficient 332 00:19:48,280 --> 00:19:51,920 Speaker 1: evidence to convict him because no murder weapon was ever 333 00:19:51,960 --> 00:19:55,439 Speaker 1: recovered and there was no forensic evidence to prove that 334 00:19:55,520 --> 00:19:59,720 Speaker 1: he killed his wife or Burman. Does that prove insufficient, 335 00:19:59,760 --> 00:20:02,280 Speaker 1: ever sense to convict well. That will be up for 336 00:20:02,320 --> 00:20:04,720 Speaker 1: an appeals court to decide. But we did have a 337 00:20:04,800 --> 00:20:08,639 Speaker 1: case here where there was no direct forensic evidence tying 338 00:20:08,720 --> 00:20:11,600 Speaker 1: him to the murders, but there was other evidence, including 339 00:20:11,640 --> 00:20:14,600 Speaker 1: not only the testimony of Durst himself, but the testimony 340 00:20:14,640 --> 00:20:17,760 Speaker 1: of other witnesses for the prosecution. For example, there was 341 00:20:17,800 --> 00:20:21,040 Speaker 1: a long time friend of both Mr Durst and miss 342 00:20:21,119 --> 00:20:24,520 Speaker 1: Burman who testified that Mr Durst had told him it 343 00:20:24,680 --> 00:20:28,119 Speaker 1: was her or me, referring to Burman, I had no choice, 344 00:20:28,280 --> 00:20:32,040 Speaker 1: And prosecutors used that in their summation, saying that those 345 00:20:32,160 --> 00:20:35,199 Speaker 1: nine words summed up the entire case that at that 346 00:20:35,280 --> 00:20:38,200 Speaker 1: point Mr Durst felt that he had no choice but 347 00:20:38,320 --> 00:20:40,760 Speaker 1: to kill Susan Burman, who was about to talk to 348 00:20:40,840 --> 00:20:44,400 Speaker 1: police about the killing of his wife back in two 349 00:20:45,040 --> 00:20:49,679 Speaker 1: But prosecutors don't need forensic evidence or a murder weapon 350 00:20:49,720 --> 00:20:52,680 Speaker 1: to convict, do they. They could have a holy circumstantial 351 00:20:52,760 --> 00:20:55,919 Speaker 1: case and get a conviction. No, that's absolutely right, And 352 00:20:55,920 --> 00:20:59,439 Speaker 1: there are cases, of course, where people are convicted of 353 00:21:00,040 --> 00:21:03,720 Speaker 1: asides where nobody is found, where there's no forensic evidence 354 00:21:03,920 --> 00:21:06,520 Speaker 1: that ties them directly to the crime. For example, there's 355 00:21:06,520 --> 00:21:10,359 Speaker 1: no murder weapons found, there's no DNA evidence that ties them, 356 00:21:10,560 --> 00:21:15,240 Speaker 1: but prosecutors can still build a case circumstantially through other evidence, 357 00:21:15,520 --> 00:21:18,400 Speaker 1: through testimony of witnesses, and at the end of the day, 358 00:21:18,680 --> 00:21:21,320 Speaker 1: the standard that an appeals court will look at is 359 00:21:21,359 --> 00:21:24,600 Speaker 1: whether or not a reasonable jury could have convicted him 360 00:21:24,600 --> 00:21:27,040 Speaker 1: based on the evidence that was presented at the trial. 361 00:21:27,400 --> 00:21:31,359 Speaker 1: This was a trial that was held during COVID and 362 00:21:31,400 --> 00:21:35,800 Speaker 1: another one of the reasons for appeal is his attorneys 363 00:21:35,920 --> 00:21:39,800 Speaker 1: say jurist was prevented from receiving a fair trial because 364 00:21:39,800 --> 00:21:43,520 Speaker 1: of the lengthy delay of the proceedings. His lawyers had 365 00:21:43,560 --> 00:21:46,800 Speaker 1: called the fourteen month delay the longest of German in 366 00:21:46,960 --> 00:21:50,639 Speaker 1: US history featuring the same jury, and argued that the 367 00:21:50,720 --> 00:21:53,840 Speaker 1: jurors could have forgotten information from the start of the trial, 368 00:21:54,000 --> 00:21:57,920 Speaker 1: discussed the case with others, or watch television programs about 369 00:21:58,000 --> 00:22:01,360 Speaker 1: the case. Is that valid the judge making the decision 370 00:22:01,440 --> 00:22:03,600 Speaker 1: that after fourteen months he was going to go ahead 371 00:22:03,640 --> 00:22:06,320 Speaker 1: with the same jury, Well, it's certainly an issue that 372 00:22:06,359 --> 00:22:09,400 Speaker 1: you could expect the defense lawyers to raise, because any 373 00:22:09,440 --> 00:22:12,560 Speaker 1: time you have an unusual circumstance, something that has not 374 00:22:12,800 --> 00:22:16,920 Speaker 1: been typically seen in a criminal trial, defense lawyers will 375 00:22:16,960 --> 00:22:20,000 Speaker 1: always argue that their client has been prejudiced by that. 376 00:22:20,280 --> 00:22:22,160 Speaker 1: So in this case, you do have this very unusual 377 00:22:22,160 --> 00:22:24,439 Speaker 1: circumstance where the trial was started and then it was 378 00:22:24,520 --> 00:22:27,520 Speaker 1: paused for an extended period of time due to COVID, 379 00:22:27,720 --> 00:22:29,960 Speaker 1: and they're going to argue that their client didn't get 380 00:22:29,960 --> 00:22:32,960 Speaker 1: a fair trial because of that. What the appeals court 381 00:22:33,000 --> 00:22:35,000 Speaker 1: is going to do is look at the entire transcript 382 00:22:35,080 --> 00:22:37,760 Speaker 1: of the trial and determine whether or not the defend 383 00:22:37,800 --> 00:22:40,359 Speaker 1: it was in fact prejudice, and even if he was, 384 00:22:40,720 --> 00:22:43,480 Speaker 1: whether it was so severe that it would have changed 385 00:22:43,520 --> 00:22:46,160 Speaker 1: the outcome of the trial. So these are the type 386 00:22:46,160 --> 00:22:48,440 Speaker 1: of issues that you expect to be raised on appeal. 387 00:22:49,160 --> 00:22:51,199 Speaker 1: These are the type of issues that I think, unless 388 00:22:51,240 --> 00:22:54,840 Speaker 1: they're really extraordinary, unless they can point to a specific 389 00:22:55,160 --> 00:22:59,240 Speaker 1: prejudice that resulted from the delay, I think it's unlikely 390 00:22:59,280 --> 00:23:02,320 Speaker 1: to sway the Heels Court and unlikely that it will 391 00:23:02,359 --> 00:23:05,560 Speaker 1: result in a new trial. From Mr Durst. Another point 392 00:23:05,600 --> 00:23:08,400 Speaker 1: of appeals that the judge made an error in allowing 393 00:23:08,520 --> 00:23:14,160 Speaker 1: jurors to see that HBO documentary. The jinks that's pretty 394 00:23:14,200 --> 00:23:16,920 Speaker 1: unusual to allow them to see a documentary, isn't it. 395 00:23:17,560 --> 00:23:21,119 Speaker 1: Again another very unusual aspect of this case, and again 396 00:23:21,160 --> 00:23:23,760 Speaker 1: an issue that defense lawyers will make a big deal 397 00:23:23,800 --> 00:23:26,600 Speaker 1: about and try to suggest that their client was prejudiced 398 00:23:26,640 --> 00:23:30,240 Speaker 1: by allowing jurists to sit through that documentary. It is 399 00:23:30,320 --> 00:23:34,800 Speaker 1: highly unusual, but it's also highly unusual for the defendant 400 00:23:34,960 --> 00:23:37,320 Speaker 1: to have made some of the statements that he made 401 00:23:37,720 --> 00:23:42,240 Speaker 1: during that documentary that prosecutors say amounted essentially to a 402 00:23:42,280 --> 00:23:46,800 Speaker 1: confession to those crimes. This point interested me. The judge 403 00:23:46,840 --> 00:23:51,960 Speaker 1: excluded evidence of possible sightings of Kathy Durst in New 404 00:23:52,040 --> 00:23:56,160 Speaker 1: York City while Mr Durst's first wife went missing back 405 00:23:56,200 --> 00:23:59,439 Speaker 1: in nine two, and although prosecutors and legs during the 406 00:23:59,480 --> 00:24:02,920 Speaker 1: trials he was responsible for her murder, he was never 407 00:24:03,000 --> 00:24:05,520 Speaker 1: charged with that crime. So one of the strategies the 408 00:24:05,560 --> 00:24:07,919 Speaker 1: defense was using here was to try to argue that, 409 00:24:07,960 --> 00:24:10,480 Speaker 1: in fact, he may not have even been dead. Her 410 00:24:10,520 --> 00:24:13,439 Speaker 1: body was never found, a murder weapon was never found, 411 00:24:13,720 --> 00:24:15,960 Speaker 1: and the judge in this case so found the evidence 412 00:24:16,119 --> 00:24:18,159 Speaker 1: to be so attenuated that you did not let it 413 00:24:18,200 --> 00:24:20,280 Speaker 1: go in front of the jury. Whether or not ultimately 414 00:24:20,280 --> 00:24:22,399 Speaker 1: that amounts to reversible error will be something for the 415 00:24:22,440 --> 00:24:26,320 Speaker 1: appeals court to decide. It really would depend on, in 416 00:24:26,359 --> 00:24:30,200 Speaker 1: my view, how credible that evidence was about a Cathy 417 00:24:30,320 --> 00:24:34,000 Speaker 1: Durst sighting. Obviously, she had been declared legally dead many 418 00:24:34,119 --> 00:24:37,240 Speaker 1: years ago, and there was very little evidence to suggest 419 00:24:37,280 --> 00:24:40,080 Speaker 1: that she was still alive. But whether or not it 420 00:24:40,200 --> 00:24:43,119 Speaker 1: is something that should have been placed before the jury 421 00:24:43,160 --> 00:24:47,080 Speaker 1: so they could consider the possibility that she's missing all 422 00:24:47,200 --> 00:24:50,119 Speaker 1: these years and not actually dead is something that the 423 00:24:50,160 --> 00:24:52,320 Speaker 1: appeals court will have to look at and decide whether 424 00:24:52,320 --> 00:24:54,920 Speaker 1: that evidence was credible enough that it should have gone 425 00:24:54,920 --> 00:24:58,359 Speaker 1: to jurors for their consideration. As you mentioned, Durst was 426 00:24:58,440 --> 00:25:02,720 Speaker 1: never charged in connection with his wife's disappearance, despite investigations 427 00:25:02,800 --> 00:25:06,000 Speaker 1: by the New York Police Department, the State Police, the 428 00:25:06,000 --> 00:25:09,960 Speaker 1: Westchester County District Attorney's office. After the verdict was announced, 429 00:25:10,000 --> 00:25:14,359 Speaker 1: the family of Kathy Durst issued a statement calling on 430 00:25:14,440 --> 00:25:17,479 Speaker 1: prosecutors to pursue a case in her death as well. 431 00:25:17,680 --> 00:25:21,119 Speaker 1: Would that be an even more difficult case to bring 432 00:25:21,160 --> 00:25:24,280 Speaker 1: at this point, It would be an even more difficult 433 00:25:24,320 --> 00:25:28,760 Speaker 1: case because she went missing back in and at this point, 434 00:25:29,119 --> 00:25:32,200 Speaker 1: based upon this conviction and assuming it's not overturned, Mr 435 00:25:32,280 --> 00:25:35,720 Speaker 1: Durst will get a sentence of life without parole, So 436 00:25:35,840 --> 00:25:38,840 Speaker 1: prosecutors would have to look at that decide whether or 437 00:25:38,840 --> 00:25:41,840 Speaker 1: not there was a possibility of actually getting a conviction 438 00:25:42,080 --> 00:25:44,720 Speaker 1: in the case that was that old, and also whether 439 00:25:44,800 --> 00:25:48,119 Speaker 1: or not it warranted them spending the time and the money, 440 00:25:48,160 --> 00:25:52,080 Speaker 1: on the resources to pursue a criminal case in which 441 00:25:52,119 --> 00:25:56,359 Speaker 1: the defendant was already serving life without parole. Bob, before 442 00:25:56,520 --> 00:25:58,920 Speaker 1: let you go, tell me what you think the defense 443 00:25:59,040 --> 00:26:03,959 Speaker 1: is strategy is here and why it failed. The strategy 444 00:26:04,000 --> 00:26:06,440 Speaker 1: of the defense here was to try to portray their 445 00:26:06,600 --> 00:26:11,280 Speaker 1: client as a hapless, socially awkward man who just makes 446 00:26:11,320 --> 00:26:14,000 Speaker 1: poor decisions and it was in the wrong place at 447 00:26:14,000 --> 00:26:18,320 Speaker 1: the wrong time. He ran twice rather than contacting the police, 448 00:26:18,680 --> 00:26:20,240 Speaker 1: and they tried to pain him a somewhat of the 449 00:26:20,359 --> 00:26:26,960 Speaker 1: victim of ambitious prosecutors and deceptive filmmakers. But ultimately the 450 00:26:27,080 --> 00:26:31,600 Speaker 1: jury seemed to reject that characterization of Mr Durst. He 451 00:26:31,640 --> 00:26:36,199 Speaker 1: admitted to prosecutors that he lied, and he admitted, and 452 00:26:36,280 --> 00:26:39,840 Speaker 1: perhaps one of the highest points of drama during the trial, 453 00:26:40,200 --> 00:26:42,639 Speaker 1: that not only had he lied in the past, but 454 00:26:42,760 --> 00:26:46,000 Speaker 1: he would lie today if he had to. He was 455 00:26:46,040 --> 00:26:49,439 Speaker 1: asked by the prosecutor did you kill Susan Berman, and 456 00:26:49,520 --> 00:26:52,719 Speaker 1: he answered that he didn't. The prosecutor then filed up 457 00:26:52,720 --> 00:26:55,920 Speaker 1: and said, but if you did, you would lie about it, correct, 458 00:26:56,119 --> 00:27:00,480 Speaker 1: to which Mr Durst replied correct. That was essentially the 459 00:27:00,560 --> 00:27:04,439 Speaker 1: completion of the self destruction of Mr Durst on the stand. 460 00:27:04,760 --> 00:27:08,399 Speaker 1: He really stealed his own fate first by talking to 461 00:27:08,560 --> 00:27:12,879 Speaker 1: the HBO documentary makers and putting himself back in the spotlight, 462 00:27:13,200 --> 00:27:17,880 Speaker 1: and then making that bathroom confession according to prosecutors, where 463 00:27:17,920 --> 00:27:20,959 Speaker 1: he walked off of cameras, went into the bathroom, not 464 00:27:21,160 --> 00:27:24,120 Speaker 1: knowing that his mic was still on, unaware that he's 465 00:27:24,160 --> 00:27:27,480 Speaker 1: being recorded, and said, what the hell did I do? 466 00:27:27,880 --> 00:27:31,720 Speaker 1: Killed them all? Of course, prosecutors used that as a 467 00:27:31,800 --> 00:27:36,080 Speaker 1: confession by Mr Durst to the crying. The defense tried 468 00:27:36,119 --> 00:27:38,800 Speaker 1: to argue that those statements were taken out of context 469 00:27:39,119 --> 00:27:42,359 Speaker 1: and didn't mean what they appeared to mean, but ultimately 470 00:27:42,640 --> 00:27:45,639 Speaker 1: that was a very difficult statement for the defense have 471 00:27:45,760 --> 00:27:48,919 Speaker 1: to deal with, and ultimately the jury simply did not 472 00:27:49,119 --> 00:27:52,920 Speaker 1: find him credible. Thanks Bob. That's Robert Mints of McCarter 473 00:27:53,040 --> 00:27:55,440 Speaker 1: and English, and that's it for this edition of The 474 00:27:55,440 --> 00:27:58,280 Speaker 1: Bloomberg Law Show. Remember you can always get the latest 475 00:27:58,359 --> 00:28:00,920 Speaker 1: legal news on our Bloomberg lampont has. You can find 476 00:28:00,960 --> 00:28:05,200 Speaker 1: them on Apple Podcasts, Spotify and at www dot Bloomberg 477 00:28:05,320 --> 00:28:09,880 Speaker 1: dot com, Slash podcast, Slash I'm Jo Basso, and you're 478 00:28:09,920 --> 00:28:10,840 Speaker 1: listening to bloomber