WEBVTT - NYC School Vaccine Mandate Given Green Light 0:00:03.200 --> 0:00:08.480 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:09.240 --> 0:00:12.360 New York City Mayor Bill de Blasio can bar thousands 0:00:12.360 --> 0:00:16.160 of unvaccinated teachers and other public school workers from their 0:00:16.280 --> 0:00:19.799 jobs after the Second Circuit Court of Appeals lifted a 0:00:19.880 --> 0:00:23.520 temporary injunction preventing such a move. There is going to 0:00:23.560 --> 0:00:27.000 be a full procedure UH in the course of this week, 0:00:27.440 --> 0:00:32.120 and we're very, very confident that the city part education 0:00:32.240 --> 0:00:35.520 is going to prevail because we're trying to protect kids, 0:00:35.880 --> 0:00:38.320 We're trying to protect families, were trying to protect working 0:00:38.360 --> 0:00:41.640 people in our schools. We've been in court with this 0:00:42.040 --> 0:00:45.159 very same set information, very same argument at both the 0:00:45.200 --> 0:00:48.760 state and the federal level. We've won previously. We expect 0:00:48.840 --> 0:00:52.400 to win again and quickly. The Appellate Court gave no 0:00:52.520 --> 0:00:55.600 reason for the decision on Monday, other than saying the 0:00:55.640 --> 0:00:59.800 injunction that had been entered last Friday was for administrative purposes. 0:01:00.160 --> 0:01:04.000 This is all about the preliminary injunction. The underlying legal 0:01:04.040 --> 0:01:07.600 and constitutional challenges to the city policy are yet to 0:01:07.640 --> 0:01:11.200 be heard. The practical effect that the largest school district 0:01:11.280 --> 0:01:14.880 in the country may now insist that all school employees 0:01:14.920 --> 0:01:18.880 and contractors be vaccinated. The mandate will go into effect 0:01:18.920 --> 0:01:22.479 on Friday at day's end. Joining me is Dorrit Reese, 0:01:22.520 --> 0:01:25.200 a law professor at you see Hastings College of Law 0:01:25.280 --> 0:01:29.399 who specializes in vaccine policy. Were you surprised at the 0:01:29.480 --> 0:01:33.320 second Circuit is allowing the vaccine mandate to go into effect? 0:01:34.480 --> 0:01:37.679 Not really. My reading of the initial decision was the 0:01:37.720 --> 0:01:40.479 Second Circuit was coming in with the view that they 0:01:40.480 --> 0:01:44.080 needed a little more time to consider this. But these 0:01:44.080 --> 0:01:49.120 preliminary measures are unusual. Most of the time courts don't 0:01:49.160 --> 0:01:51.800 stay a measure well, gratification is going on, and the 0:01:51.840 --> 0:01:55.160 bark of them is pretty high, So I was not so. 0:01:55.360 --> 0:01:58.520 In this challenge, the public school teachers and aids claim 0:01:58.600 --> 0:02:02.680 the requirement for a vaccine violates their right to pursue 0:02:02.720 --> 0:02:06.520 their profession and discriminates against them. What's your take on 0:02:06.600 --> 0:02:09.160 that argument. Neither of those is a very good argument. 0:02:09.440 --> 0:02:12.200 The first part the valid their professions. They're trying to 0:02:12.240 --> 0:02:15.200 make a constitutional argument that it goes against the constitutional rights. 0:02:15.400 --> 0:02:17.680 The problem they have run into it that the standards 0:02:17.680 --> 0:02:21.920 for public health measures that limit individual rights is historically 0:02:22.120 --> 0:02:26.040 the standard set in Jacobson versus Massachusetts from nine five, 0:02:26.320 --> 0:02:30.440 and that's a very lenient center towards the policymakers. The 0:02:30.480 --> 0:02:33.840 policymakers can limit individual rights in the public health under 0:02:33.880 --> 0:02:38.000 it as long as the lives are reasonable, and teachers 0:02:38.280 --> 0:02:41.399 co vaccine mandates in the middle of a pandemic when 0:02:41.440 --> 0:02:43.880 many of the children can't be vaccimated, yet, it's probably 0:02:43.880 --> 0:02:46.839 going to be found in reasonable. The second argument, discrimination 0:02:46.919 --> 0:02:51.720 argument is even weaker, and here's why. First, unvaccinated workers 0:02:51.720 --> 0:02:56.440 are not situated similarly to vaccinated workers. Discrimination means treating 0:02:56.480 --> 0:03:01.440 the like case differently, but unvaccinated teachers the gnostages similarly 0:03:01.440 --> 0:03:05.160 to vaccinated features. Unvaccinated features are at higher bits of 0:03:05.240 --> 0:03:09.040 getting combinating the vaccinating features, and it's higher is of 0:03:09.160 --> 0:03:12.560 completing it to the students, so they're not in the 0:03:12.600 --> 0:03:16.400 same category. And it's not any more discriminations than given 0:03:16.520 --> 0:03:20.000 tickets for jaywalking just to jaywalkers and not to people 0:03:20.000 --> 0:03:24.600 who stand on the sidewalk. Second, even if their distinction 0:03:24.880 --> 0:03:27.760 wasn't as strong as it is, being an unvaccinated teature 0:03:27.840 --> 0:03:31.079 is not a protective category. Choosing not to vaccinate. It's 0:03:31.160 --> 0:03:34.040 not equivalent to being part of a racial groups, part 0:03:34.080 --> 0:03:37.400 of religious groups, et cetera. So that's Clay two isn't 0:03:37.520 --> 0:03:41.120 very strong. Is the most recent Supreme Court precedent that 0:03:41.680 --> 0:03:47.360 nineteen o five case that upheld in Massachusetts smallpox vaccination law. 0:03:48.400 --> 0:03:52.040 So we refer to Jacobson because it's been a help 0:03:52.080 --> 0:03:55.040 and relied on in many cases. Sees, it's still the 0:03:55.120 --> 0:03:59.200 case that's often cited in discussions of public health. So 0:04:00.000 --> 0:04:03.080 at it's a really old case. The conclusions are echoed 0:04:03.080 --> 0:04:06.400 in a lot of more recent cases, so it's the 0:04:06.480 --> 0:04:10.640 latest case directly on points, but it has a very 0:04:10.760 --> 0:04:14.080 strong progeny and a very strong history. Seat is there 0:04:14.120 --> 0:04:16.880 a difference when the vaccine mandate comes from the federal 0:04:16.960 --> 0:04:20.240 government as opposed to the state, your city, so federal 0:04:20.360 --> 0:04:22.760 versus locales there is a difference, but it's not in 0:04:22.800 --> 0:04:26.240 the sermon constitutional rights, the constitutional writers, students, and the 0:04:26.240 --> 0:04:29.000 different who applies to both state and face. However, the 0:04:29.040 --> 0:04:32.920 Special Government has to face additions constraints. The sedial government 0:04:32.960 --> 0:04:35.200 is one of limps with power, and it can only 0:04:35.240 --> 0:04:38.960 act within the sermy powers, the main part to regulates 0:04:39.000 --> 0:04:42.200 public health life with the state. The special government can 0:04:42.240 --> 0:04:44.680 do some of it under its other powers, such as 0:04:44.720 --> 0:04:47.640 the parts who regulates inter state commerce. The parts to 0:04:47.720 --> 0:04:52.280 regulate interstate trouble, the power to add conditions when it 0:04:52.440 --> 0:04:55.080 comes program. The federal government gives a lot of money 0:04:55.120 --> 0:04:57.560 to the state for variety of things, and when it 0:04:57.640 --> 0:05:00.359 gives money, it can do it with condition. So the 0:05:00.360 --> 0:05:03.520 secial government has limited parties to act in the public health, 0:05:03.920 --> 0:05:06.440 and you have to make sure any measority takes within 0:05:06.640 --> 0:05:11.440 those powers. The Supreme Court denied review of Indiana University's 0:05:11.520 --> 0:05:15.560 vaccine mandate for employees and students in the shadow docket, 0:05:15.960 --> 0:05:20.040 but we also saw COVID restrictions struck down when it 0:05:20.160 --> 0:05:24.480 was due to religious reasons. Do you have any doubt that, 0:05:24.680 --> 0:05:28.400 let's say, if that case came to the Supreme Court now, 0:05:29.160 --> 0:05:32.200 would they hold in the same way. I am very 0:05:32.200 --> 0:05:35.320 sure that if the nineteen o five Jacobsen case came 0:05:35.360 --> 0:05:37.200 to the Supreme Court now they would just help the 0:05:37.279 --> 0:05:40.520 same way. As you correctly say, there's a number of 0:05:40.600 --> 0:05:43.160 things that go under this, some of them are more 0:05:43.200 --> 0:05:48.839 complicated than others. First, Jacobson was eminently reasonable because it 0:05:49.040 --> 0:05:51.640 was a small poxman imposed in the middle of an 0:05:51.640 --> 0:05:57.960 outbreak against the very dangerous disease, and the function was moderate. 0:05:58.480 --> 0:06:01.760 It's fine, so has made it an eadicate in many 0:06:01.760 --> 0:06:05.920 ways to uphold you're correctly saying that there are different 0:06:05.960 --> 0:06:10.240 rubrics here. Jacobson was not addressed under religious freedom. Jakobson 0:06:10.320 --> 0:06:13.480 did not claim that he had religious objections to the vaccine. 0:06:13.760 --> 0:06:17.120 He was worried that the vaccine was unsafe. Religious freedom 0:06:17.440 --> 0:06:20.679 wasn't at the time protected against the state, only against 0:06:20.720 --> 0:06:24.320 the federal government, but today it is protected. Today is 0:06:24.360 --> 0:06:27.479 protected against state actions, and the Supreme Court has been 0:06:27.520 --> 0:06:31.080 a leverage student on religious freedom that separate from the 0:06:31.120 --> 0:06:35.560 discipline's injury student. And right now it's unclear whether that 0:06:35.680 --> 0:06:40.120 rest would require a religious exemption from a chteine mandate 0:06:40.200 --> 0:06:43.640 that also had a medical exemption. It's just unclear. I 0:06:43.720 --> 0:06:46.160 think a good reason to say no that you don't 0:06:46.200 --> 0:06:49.080 have to be a religious exemption from a vaccine mandate 0:06:49.200 --> 0:06:53.760 even if it has medical exemptions. First, because medical exemptions 0:06:53.800 --> 0:06:57.600 are part of the framework that creates the mandate. The 0:06:57.720 --> 0:07:00.000 goal of the mandate is to make sure that anyone 0:07:00.080 --> 0:07:03.480 who can be safety vascinated is the vascinated to increase 0:07:03.839 --> 0:07:08.960 rates of extination enough to prevent outbreaks. Medical exemptions are 0:07:09.000 --> 0:07:11.160 part of that because they are apply to people who 0:07:11.240 --> 0:07:15.520 cannot be safely back to me. Second, medical exemptions are 0:07:15.560 --> 0:07:20.920 probably contusionally necessary under and third there's good You need 0:07:21.000 --> 0:07:25.200 to think that mostly this exemputive excy are by people 0:07:25.240 --> 0:07:27.440 whose of the position of exciti is not religious, but 0:07:27.520 --> 0:07:31.080 most of them are instanced here, so requiring a religious 0:07:31.080 --> 0:07:34.720 exemption from a safety measure in a case to where 0:07:34.960 --> 0:07:37.760 we know there's going to be extensive abuse of the 0:07:37.840 --> 0:07:41.040 exemption by people whose reasons are not religions totally further 0:07:41.120 --> 0:07:45.560 than the Supreme courtile though, but that's an assessment. We 0:07:45.640 --> 0:07:47.280 have to see what the Supreme Court will do with 0:07:47.320 --> 0:07:50.800 a perfect A three judge federal panel is set to 0:07:50.840 --> 0:07:55.280 consider whether to delay a vaccine mandate affecting healthcare work 0:07:55.320 --> 0:07:58.680 or statewide in New York. That doesn't provide an exemption 0:07:58.720 --> 0:08:02.440 for religious grounds. So you think that from what you 0:08:02.520 --> 0:08:06.600 just said that that will pass muster that vaccine mandate 0:08:06.680 --> 0:08:09.920 even though it doesn't provide a religious exemption. I think 0:08:09.920 --> 0:08:13.520 it's unclear whether the fertile circuits will allow it. And 0:08:13.560 --> 0:08:15.920 the reason is that the Supreme Court you students created 0:08:16.000 --> 0:08:21.000 someone certainty. The Supreme Court basically provide us conflicting sources. 0:08:21.040 --> 0:08:24.600 On one hand, in a series of shadow doctor cases 0:08:24.960 --> 0:08:28.920 that we're not actually reason that didn't have the storic explanations. 0:08:29.080 --> 0:08:31.600 The Supreme Court said, we don't want you to put 0:08:31.600 --> 0:08:35.120 in place measures of treats religious house of worships. Differently, 0:08:35.720 --> 0:08:38.959 on the other hand, in Cooken versus Study of Philadelphia case, 0:08:39.000 --> 0:08:42.319 where the court directly asked, do you have to give 0:08:42.320 --> 0:08:46.520 a religious exemption from a general law? A majority of 0:08:46.559 --> 0:08:50.160 the Supreme Court said, we're keeping the old law for now, 0:08:50.280 --> 0:08:52.199 the laws that says that you don't have to be 0:08:52.920 --> 0:08:56.000 a religious exemption from a generally applicable laws. But there 0:08:56.120 --> 0:08:58.760 was a very very strompt descent going the other way. 0:08:59.200 --> 0:09:02.120 Not discent because everybody agree on the result in that case, 0:09:02.600 --> 0:09:04.920 but there was a very strong set of judges that 0:09:05.000 --> 0:09:09.319 would have liked to overturn that movie. So right now, 0:09:10.000 --> 0:09:12.040 where is the Supreme Court will go? If it's directly 0:09:12.040 --> 0:09:14.439 effects with the question here is a vaccine man, it 0:09:14.720 --> 0:09:17.200 doesn't give a religious sugestion is a little bit unclear 0:09:17.559 --> 0:09:19.599 and the second circuit to be acting to this and 0:09:19.720 --> 0:09:23.360 certainty could go either way. More and more workers are 0:09:23.360 --> 0:09:27.200 applying for religious exemptions. For example, in l A, about 0:09:27.200 --> 0:09:30.240 a quarter of the police department is expected to seek 0:09:30.480 --> 0:09:35.600 religious exemptions from vaccine mandates. Just explain what a worker 0:09:35.679 --> 0:09:39.679 has to show in order to again a religious exemption. 0:09:40.160 --> 0:09:43.720 So there's two parts to the religious exemptions claim. One 0:09:43.760 --> 0:09:45.760 is it has to be religious and sweet has to 0:09:45.800 --> 0:09:49.880 be stence here for religious the specialities, Streten suggests a 0:09:49.960 --> 0:09:54.839 three part sept. First, a religious is about fundamental a 0:09:55.080 --> 0:09:58.800 high level questions such as the meaning of life, things 0:09:58.840 --> 0:10:01.360 like that, So it has to address those kinds of 0:10:01.480 --> 0:10:06.120 high level ethical issues. Second, you can't just grab into 0:10:06.120 --> 0:10:09.160 one religious birth. Your religious objection has to be part 0:10:09.160 --> 0:10:14.079 of the comprehensive belief system. And Third, usually but not always, 0:10:14.240 --> 0:10:17.880 religious is a companied by external science and right maybe 0:10:18.080 --> 0:10:20.480 something you were, maybe something you do. Again, this is 0:10:20.480 --> 0:10:24.360 not required. You can have very personal belief, but if 0:10:24.360 --> 0:10:27.080 you have those help What is sest Is trying to 0:10:27.120 --> 0:10:30.559 do is draw the line between things that are religious 0:10:30.600 --> 0:10:33.959 and things that are strongly help believe but not religious, 0:10:34.000 --> 0:10:38.640 without limiting religions to believe in a deity or multiple deities. 0:10:39.000 --> 0:10:42.680 So that's the test for ISAs it's religions. The second 0:10:42.679 --> 0:10:45.559 partion is since here and that's what think gets really hard, 0:10:46.200 --> 0:10:48.480 and that's one of the reasons by the way against 0:10:48.480 --> 0:10:52.679 inquiring religious subsemption. The problem is that the test for 0:10:52.800 --> 0:10:57.160 sincereity does the person called the sinecure religious belief, not 0:10:57.520 --> 0:11:01.400 does the religion object to the excins. So you can't 0:11:01.440 --> 0:11:04.640 require a letter from ecourergy. You can't say if your 0:11:04.679 --> 0:11:07.400 relieving support bos so, for example, if you're a Catholic 0:11:07.520 --> 0:11:11.160 or a Jew, you don't have it will claim here. 0:11:11.600 --> 0:11:14.840 You can't say your beliefy irrational. We're not going to 0:11:14.880 --> 0:11:18.320 allow it because it's not about judging the rationality. That 0:11:18.400 --> 0:11:21.960 makes it's really hard to police. And since we have 0:11:22.040 --> 0:11:24.839 good reasons to think that most of these people are 0:11:25.080 --> 0:11:29.600 opposing the vaccine not because of religiousisms, but because they've 0:11:29.600 --> 0:11:33.120 read online misinformation that scared them off the vaccine, we 0:11:33.200 --> 0:11:37.200 can't expect extensive views of this. And that means that 0:11:37.280 --> 0:11:41.199 it's this exemption for our treats, which is why, as 0:11:41.240 --> 0:11:43.719 you said, some states are saying we won't give it 0:11:43.760 --> 0:11:46.280 any to them, and we know it's very vulnerable to abuse, 0:11:47.120 --> 0:11:49.480 and we'll have to see where the court stands in 0:11:49.559 --> 0:11:52.240 the with a vaccine mandate, when there's an option to 0:11:52.280 --> 0:11:57.000 get vaccinated or to take regular coronavirus tests, that seems 0:11:57.040 --> 0:11:59.680 to defeat the point of the mandate. Do you think 0:12:00.040 --> 0:12:04.880 it still would require that there be that option. Mhm. So, 0:12:05.000 --> 0:12:07.360 first of all, whether it decreads the point of the man, 0:12:07.400 --> 0:12:09.120 that depends what the point of the man. That is. 0:12:09.679 --> 0:12:11.400 If you can get to a point where the tests 0:12:11.400 --> 0:12:14.800 are good enough that you can be reasonably sure the 0:12:14.840 --> 0:12:18.360 person probably doesn't have coronavirus, the testing might be a 0:12:18.360 --> 0:12:21.880 reasonable alternative. And the reason we are seeing a lot 0:12:21.920 --> 0:12:24.400 of places of the testing is that it gives them 0:12:24.400 --> 0:12:26.679 out to people who have very strong feeling against the 0:12:26.760 --> 0:12:29.959 vaccine whilst putting in place something that makes refusing the 0:12:30.040 --> 0:12:33.280 vaccine harder. It's a reasonable option. I don't think course 0:12:33.360 --> 0:12:36.600 will require it, though, and that's because in some places 0:12:36.840 --> 0:12:40.240 testing is not a good enough for options. First, it's 0:12:40.280 --> 0:12:43.400 not clear that we have good enough testing to reliably 0:12:43.440 --> 0:12:45.679 tell us who is inspecting who is not. Some people 0:12:46.080 --> 0:12:49.920 don't test positive until a little into their inspections, but 0:12:49.960 --> 0:12:53.760 they can be contagious before second vaccines and testing together, 0:12:53.800 --> 0:12:57.040 as in LAS Latter proscurity. And I think court will 0:12:57.080 --> 0:13:00.240 say this time of uncertainty, we will defer to the 0:13:00.280 --> 0:13:03.360 decision maker, and if the decision makers it doesn't want 0:13:03.440 --> 0:13:06.839 to allow testing options. They don't have to. They can 0:13:06.880 --> 0:13:11.560 conclude reasonably that it's not a good enough options. Vaccine 0:13:11.600 --> 0:13:15.800 mandates are being challenging state courts and federal courts all 0:13:15.840 --> 0:13:19.280 across the country. Do you think that they're likely to 0:13:19.360 --> 0:13:23.760 survive the court challenges? I think, but sine Mandy will 0:13:23.840 --> 0:13:27.360 survive godly in the sense that mostly will be upheld. 0:13:27.760 --> 0:13:30.840 I express there will be losses on an individual basis, 0:13:30.840 --> 0:13:34.400 on refusing an individual religious extensions, or maybe on the 0:13:34.480 --> 0:13:38.640 question of a religious freedom. But I expect the court 0:13:38.760 --> 0:13:43.480 to give employers, states, the federal government quite a bit 0:13:43.520 --> 0:13:46.079 of latitude in requiring but sin as long as so 0:13:46.200 --> 0:13:48.520 for the federal governments of the question, are they overstepping 0:13:48.559 --> 0:13:51.560 their parts? But other than that, I explained the course 0:13:51.600 --> 0:13:54.160 to give quite a bit of latitudes. Because judges live 0:13:54.240 --> 0:13:57.480 in this country as well, they see what's going on. 0:13:57.840 --> 0:14:00.480 There are words as coven nights seems killed hundreds of 0:14:00.480 --> 0:14:04.520 thousands Americans in the last two years, and they're likely 0:14:04.600 --> 0:14:08.840 to understand why health authorities, why public health authorities and 0:14:08.840 --> 0:14:11.599 other officials are doing. Are reaching for mandates as a 0:14:11.640 --> 0:14:16.800 way to prove mandates aren't your ideal first option. I 0:14:16.880 --> 0:14:19.640 hoped we wouldn't be where we are, and I think 0:14:19.760 --> 0:14:21.680 a few of us are happy that we're still dealing 0:14:21.680 --> 0:14:26.520 with coronavirus in plates. But when the diseases raising mandates 0:14:26.560 --> 0:14:28.960 are in some ways the least worst options are better 0:14:29.040 --> 0:14:31.280 than letting people die. Thanks for being on the Bloomberg 0:14:31.400 --> 0:14:34.200 Law Show. That's dort Rees, a professor at you See 0:14:34.200 --> 0:14:39.520 Hastings College of Law who specializes in vaccine policy. On 0:14:39.560 --> 0:14:42.960 October eighteenth, Robert Durst will be returning to the Los 0:14:42.960 --> 0:14:46.600 Angeles courtroom where a jury convicted him of the execution 0:14:46.680 --> 0:14:50.640 style murder of a close friend, to be sentenced for decades. 0:14:50.720 --> 0:14:54.680 Mysteries surrounded the millionaire real estate science who was suspected 0:14:54.760 --> 0:14:57.400 not only of the murder of his friend, but also 0:14:57.480 --> 0:15:00.720 in the disappearance of his first wife, and was actually 0:15:00.840 --> 0:15:03.720 tried and acquitted of the shooting of his next door neighbor. 0:15:04.000 --> 0:15:07.360 But there's no mystery about his sentence. The seventy eight 0:15:07.440 --> 0:15:10.480 year old Durst must be sentenced to life in prison 0:15:10.640 --> 0:15:14.000 without the possibility of parole, joining me as former federal 0:15:14.040 --> 0:15:18.240 prosecutor Robert Mint's a partner McCarter and English. The jury 0:15:18.320 --> 0:15:22.840 deliberated only about seven and a half hours in a 0:15:22.920 --> 0:15:28.760 trial where the prosecution presented eighty witnesses and introduced nearly 0:15:29.000 --> 0:15:33.040 three hundred exhibits. They also came back with special circumstances 0:15:33.160 --> 0:15:37.200 on a twenty year old murder. How surprising is that, Well, 0:15:37.240 --> 0:15:40.560 it was an incredibly lengthy trial, and there were quite 0:15:40.560 --> 0:15:43.200 a few witnesses and a lot of evidence that was 0:15:43.240 --> 0:15:47.720 presented over the course of the eleven week presentation by 0:15:47.760 --> 0:15:51.000 the prosecution, and that was of course followed by weeks 0:15:51.000 --> 0:15:54.400 of testimony by Mr Durst himself. But at the end 0:15:54.400 --> 0:15:58.600 of the day, prosecutors used Durst's own words against him, 0:15:58.920 --> 0:16:01.760 and in many ways he was the best witness for 0:16:01.920 --> 0:16:06.120 the prosecution because they had all of this recorded testimony 0:16:06.200 --> 0:16:09.440 from him. They had his own statements made to prosecutors 0:16:09.640 --> 0:16:12.600 when he was arrested, They had the recordings they had 0:16:12.640 --> 0:16:15.640 made while he was in jail, and perhaps most damning, 0:16:15.840 --> 0:16:19.360 they had his recorded testimony that he made an HBO 0:16:19.520 --> 0:16:24.760 documentary where he made statements that prosecutors argued were essentially 0:16:24.880 --> 0:16:28.000 a confession to this crime. Was it a mistake to 0:16:28.040 --> 0:16:31.080 put him on the stand. He testified to chopping up 0:16:31.080 --> 0:16:34.080 the body of a Texas neighbor he killed in self defense. 0:16:34.400 --> 0:16:37.880 To abandoning the body of his best friend after discovering 0:16:37.920 --> 0:16:41.160 her dead, and he admitted that he would lie to 0:16:41.200 --> 0:16:43.080 get out of trouble, and that he had lied during 0:16:43.120 --> 0:16:46.400 sworn testimony in the past. Why put him on the stand. 0:16:47.000 --> 0:16:49.720 That's a great question, and one of the biggest challenges 0:16:49.800 --> 0:16:53.720 that defense lawyer's face in a criminal trial is whether 0:16:53.840 --> 0:16:56.680 or not to put their client on the stand to 0:16:56.760 --> 0:17:01.520 testify in their own defense. Generally, when defendants testify at 0:17:01.560 --> 0:17:04.359 their own trial, it does not end well for them. 0:17:04.480 --> 0:17:08.040 It gives prosecutors a chance to essentially retry their case 0:17:08.320 --> 0:17:11.280 and to cross examine the defendant with all of the 0:17:11.359 --> 0:17:14.920 evidence that prosecutors had already presented as part of their 0:17:14.960 --> 0:17:18.520 case in chief. In this case, Mr Durst had testified 0:17:18.520 --> 0:17:21.440 in his own defense in the trial in Galvesta where 0:17:21.440 --> 0:17:25.439 he essentially beat back the charges of murdering a man 0:17:25.680 --> 0:17:30.159 who was his roommate in Texas, and ultimately it was 0:17:30.200 --> 0:17:33.520 the decision of Mr Durst to testify in his own 0:17:33.560 --> 0:17:36.120 defense in this trial. We don't really know whether that 0:17:36.200 --> 0:17:39.080 was over the objections of his own lawyers or not. 0:17:39.359 --> 0:17:41.600 But this is a case where you had a witness 0:17:41.640 --> 0:17:45.720 who was compelled to testify. He's obviously someone who longed 0:17:45.760 --> 0:17:48.720 for the spotlight, and it seemed out of character for 0:17:48.840 --> 0:17:52.320 him to sit by and not try to convince jurors 0:17:52.359 --> 0:17:55.359 that he, in fact had not killed Susan Burman. Bob. 0:17:55.560 --> 0:17:57.960 This was a twenty year old murder, and how often 0:17:57.960 --> 0:18:01.960 are prosecutors able to bring cases in murder trials that 0:18:02.040 --> 0:18:06.119 happened decades ago. Is this unusual? It's a highly unusual 0:18:06.160 --> 0:18:10.320 case because not only did prosecutors have to prove that 0:18:10.520 --> 0:18:13.280 Mr Durst was the murderer of Susan Burman, but they 0:18:13.359 --> 0:18:16.520 essentially also had to try to prove that he had 0:18:16.600 --> 0:18:20.399 killed his first wife, Katie McCormick, because the theory of 0:18:20.400 --> 0:18:24.440 the prostitution's case was that Susan Burman was killed because 0:18:24.480 --> 0:18:27.639 she had damning evidence against him about the fact that 0:18:27.680 --> 0:18:31.760 he had killed his first wife. So prosecutors really had 0:18:31.800 --> 0:18:34.480 to lay out the proof that he was involved and 0:18:34.600 --> 0:18:38.800 responsible for both murders, not only the murder of Susan Berman, 0:18:38.840 --> 0:18:42.119 which occurred in two thousand, but also the murder of 0:18:42.160 --> 0:18:44.600 his wife, a case in which he had never been 0:18:44.680 --> 0:18:48.960 charged and who disappeared in So this was a very 0:18:49.000 --> 0:18:53.119 old case going back decades and decades, and were it 0:18:53.200 --> 0:18:58.040 not for the unusual circumstances where Mr Durst had gone 0:18:58.200 --> 0:19:02.680 on camera and made state and during that HBO documentary, 0:19:02.920 --> 0:19:05.280 it's unlikely that he ever would have been charged and 0:19:05.320 --> 0:19:09.040 convicted for Susan Burman's death. Durst was not in the 0:19:09.080 --> 0:19:13.600 courtroom when the jury's verdict was read, and much was 0:19:13.680 --> 0:19:16.600 made of it at the time. Does a defendant have 0:19:16.680 --> 0:19:19.439 to be in the courtroom? Usually the defendant is in 0:19:19.480 --> 0:19:22.240 the courtroom unless they are acting in a way that's 0:19:22.280 --> 0:19:25.320 disruptive to the trial. But here, because of the very 0:19:25.359 --> 0:19:30.120 unusual COVID protocols, we had a situation where people were 0:19:30.160 --> 0:19:34.240 spread out throughout the courtroom. Very unusual steps were taken, 0:19:34.480 --> 0:19:37.359 and in this case Mr Durst had been exposed to 0:19:37.440 --> 0:19:41.280 somebody who had COVID and therefore was not president in 0:19:41.320 --> 0:19:44.440 the courtroom when the verdict was read. Durst is appealing 0:19:44.480 --> 0:19:48.240 on several grounds. One ground is that there was insufficient 0:19:48.280 --> 0:19:51.920 evidence to convict him because no murder weapon was ever 0:19:51.960 --> 0:19:55.439 recovered and there was no forensic evidence to prove that 0:19:55.520 --> 0:19:59.720 he killed his wife or Burman. Does that prove insufficient, 0:19:59.760 --> 0:20:02.280 ever sense to convict well. That will be up for 0:20:02.320 --> 0:20:04.720 an appeals court to decide. But we did have a 0:20:04.800 --> 0:20:08.639 case here where there was no direct forensic evidence tying 0:20:08.720 --> 0:20:11.600 him to the murders, but there was other evidence, including 0:20:11.640 --> 0:20:14.600 not only the testimony of Durst himself, but the testimony 0:20:14.640 --> 0:20:17.760 of other witnesses for the prosecution. For example, there was 0:20:17.800 --> 0:20:21.040 a long time friend of both Mr Durst and miss 0:20:21.119 --> 0:20:24.520 Burman who testified that Mr Durst had told him it 0:20:24.680 --> 0:20:28.119 was her or me, referring to Burman, I had no choice, 0:20:28.280 --> 0:20:32.040 And prosecutors used that in their summation, saying that those 0:20:32.160 --> 0:20:35.199 nine words summed up the entire case that at that 0:20:35.280 --> 0:20:38.200 point Mr Durst felt that he had no choice but 0:20:38.320 --> 0:20:40.760 to kill Susan Burman, who was about to talk to 0:20:40.840 --> 0:20:44.400 police about the killing of his wife back in two 0:20:45.040 --> 0:20:49.679 But prosecutors don't need forensic evidence or a murder weapon 0:20:49.720 --> 0:20:52.680 to convict, do they. They could have a holy circumstantial 0:20:52.760 --> 0:20:55.919 case and get a conviction. No, that's absolutely right, And 0:20:55.920 --> 0:20:59.439 there are cases, of course, where people are convicted of 0:21:00.040 --> 0:21:03.720 asides where nobody is found, where there's no forensic evidence 0:21:03.920 --> 0:21:06.520 that ties them directly to the crime. For example, there's 0:21:06.520 --> 0:21:10.359 no murder weapons found, there's no DNA evidence that ties them, 0:21:10.560 --> 0:21:15.240 but prosecutors can still build a case circumstantially through other evidence, 0:21:15.520 --> 0:21:18.400 through testimony of witnesses, and at the end of the day, 0:21:18.680 --> 0:21:21.320 the standard that an appeals court will look at is 0:21:21.359 --> 0:21:24.600 whether or not a reasonable jury could have convicted him 0:21:24.600 --> 0:21:27.040 based on the evidence that was presented at the trial. 0:21:27.400 --> 0:21:31.359 This was a trial that was held during COVID and 0:21:31.400 --> 0:21:35.800 another one of the reasons for appeal is his attorneys 0:21:35.920 --> 0:21:39.800 say jurist was prevented from receiving a fair trial because 0:21:39.800 --> 0:21:43.520 of the lengthy delay of the proceedings. His lawyers had 0:21:43.560 --> 0:21:46.800 called the fourteen month delay the longest of German in 0:21:46.960 --> 0:21:50.639 US history featuring the same jury, and argued that the 0:21:50.720 --> 0:21:53.840 jurors could have forgotten information from the start of the trial, 0:21:54.000 --> 0:21:57.920 discussed the case with others, or watch television programs about 0:21:58.000 --> 0:22:01.360 the case. Is that valid the judge making the decision 0:22:01.440 --> 0:22:03.600 that after fourteen months he was going to go ahead 0:22:03.640 --> 0:22:06.320 with the same jury, Well, it's certainly an issue that 0:22:06.359 --> 0:22:09.400 you could expect the defense lawyers to raise, because any 0:22:09.440 --> 0:22:12.560 time you have an unusual circumstance, something that has not 0:22:12.800 --> 0:22:16.920 been typically seen in a criminal trial, defense lawyers will 0:22:16.960 --> 0:22:20.000 always argue that their client has been prejudiced by that. 0:22:20.280 --> 0:22:22.160 So in this case, you do have this very unusual 0:22:22.160 --> 0:22:24.439 circumstance where the trial was started and then it was 0:22:24.520 --> 0:22:27.520 paused for an extended period of time due to COVID, 0:22:27.720 --> 0:22:29.960 and they're going to argue that their client didn't get 0:22:29.960 --> 0:22:32.960 a fair trial because of that. What the appeals court 0:22:33.000 --> 0:22:35.000 is going to do is look at the entire transcript 0:22:35.080 --> 0:22:37.760 of the trial and determine whether or not the defend 0:22:37.800 --> 0:22:40.359 it was in fact prejudice, and even if he was, 0:22:40.720 --> 0:22:43.480 whether it was so severe that it would have changed 0:22:43.520 --> 0:22:46.160 the outcome of the trial. So these are the type 0:22:46.160 --> 0:22:48.440 of issues that you expect to be raised on appeal. 0:22:49.160 --> 0:22:51.199 These are the type of issues that I think, unless 0:22:51.240 --> 0:22:54.840 they're really extraordinary, unless they can point to a specific 0:22:55.160 --> 0:22:59.240 prejudice that resulted from the delay, I think it's unlikely 0:22:59.280 --> 0:23:02.320 to sway the Heels Court and unlikely that it will 0:23:02.359 --> 0:23:05.560 result in a new trial. From Mr Durst. Another point 0:23:05.600 --> 0:23:08.400 of appeals that the judge made an error in allowing 0:23:08.520 --> 0:23:14.160 jurors to see that HBO documentary. The jinks that's pretty 0:23:14.200 --> 0:23:16.920 unusual to allow them to see a documentary, isn't it. 0:23:17.560 --> 0:23:21.119 Again another very unusual aspect of this case, and again 0:23:21.160 --> 0:23:23.760 an issue that defense lawyers will make a big deal 0:23:23.800 --> 0:23:26.600 about and try to suggest that their client was prejudiced 0:23:26.640 --> 0:23:30.240 by allowing jurists to sit through that documentary. It is 0:23:30.320 --> 0:23:34.800 highly unusual, but it's also highly unusual for the defendant 0:23:34.960 --> 0:23:37.320 to have made some of the statements that he made 0:23:37.720 --> 0:23:42.240