Speaker 1: This is Bloombird Law with June Brasso from Bloomberg Radio.
Speaker 1: What's one of you? Use Jack Curry, Jack, you're under
Speaker 1: arrest for the murder of Bobby Holland. Put your head
Speaker 1: on top of your head. You got the right from silence,
Speaker 1: thank you saying maybe use the guests you in the
Speaker 1: court of law. Hands done. You have the right to
Speaker 1: an attorney if you're not afford an attorney, when we'll
Speaker 1: be provided for you at no cost. The Miranda warnings
Speaker 1: have become embedded in our society thanks to shows like
Speaker 1: Law and Order. It's clear that the landmark Miranda decision
Speaker 1: bars coerced confessions from being used in court, But what's
Speaker 1: not clear is whether a police officer who fails to
Speaker 1: give Miranda warnings can be sued for damages for violating
Speaker 1: a suspect's constitutional rights. This week, at the Supreme Court,
Speaker 1: the joice is debated whether Miranda provides a constitutional right.
Speaker 1: Chief Justice John Roberts Injustice Amy Coney Barrett pointed out
Speaker 1: that in a case affirming Miranda, the late Chief Johnice
Speaker 1: William Renquist stopped short of calling it a constitutional right.
Speaker 1: Justice ran Quist he would have been very aware of
Speaker 1: the debate we're having today. And when it came to Dickerson,
Speaker 1: he was also somebody careful with his words. He didn't
Speaker 1: say Miranda is in the constitution. He talked about constitutional underpinnings,
Speaker 1: constitutional basis. So Dickerson didn't ever use the word constitutional right.
Speaker 1: It seemed very carefully worded to say a constitutional rule
Speaker 1: or constitutionally required joining me is Bloomberg Law reporter Jordan
Speaker 1: Reuben Jordan explained the central question here. So the question
Speaker 1: here is whether the failure to give Miranda warnings can
Speaker 1: give rise to a federal civil rights lawsuit. Now, for
Speaker 1: such a lawsuit to go forward, their needs to have
Speaker 1: been a violation of a constitutional right. And so that's
Speaker 1: what raised the question is whether this Miranda right is
Speaker 1: a constitutional right or something else. And that's been a
Speaker 1: long simmering question, and that was the focus of this argument.
Speaker 1: As you said, Miranda was subject to a lot of
Speaker 1: criticism in the eighties and nineties, and a decision by
Speaker 1: Chief Justice ran Quist put that to rest. So tell
Speaker 1: us about that decision, right, So that was really interesting
Speaker 1: that Dickerson case in two thousand. As you mentioned, ran
Speaker 1: Quists and other conservatives had long been critical of not
Speaker 1: just Miranda, but it was really a part of a
Speaker 1: series of these Warren Court era criminal procedure decisions, part
Speaker 1: of this so called criminal procedure revolution, and so these
Speaker 1: really became the opinions that were not liked on the
Speaker 1: conservative side and really enemies to be taken down over time.
Speaker 1: And so that didn't wind up happening exactly with Miranda.
Speaker 1: And in a two thousand case, Dickerson rank Was actually
Speaker 1: wrote an opinion, a seven to opinion effectively upholding Miranda
Speaker 1: when he obviously could have disagreed with it. And so
Speaker 1: really the question in this case now is what exactly
Speaker 1: did Dickerson mean? And some subsequent cases as well, And
Speaker 1: so it's not just the fact that Frankist didn't overturn
Speaker 1: Miranda in that Dickerson case, but what exactly was he
Speaker 1: doing there? And so that's really where a lot of
Speaker 1: this case is going to be decided. The central question
Speaker 1: you mentioned whether miranda warnings are a constitutional right, what
Speaker 1: were the justice's concerns and the Renquist opinion, what did
Speaker 1: they say it meant, and so really delving into the
Speaker 1: specifics of that Dickerson opinion by Ranquist, it was pointed
Speaker 1: out by some of the more conservative justices. That Ranklist
Speaker 1: was careful with his words and didn't exactly refer to
Speaker 1: Miranda as a constitutional right. He referred to it having
Speaker 1: constitutional underpinning, sort of a constitutional essence to it, if
Speaker 1: you will, but specifically not saying constitution all right, And
Speaker 1: that distinction could wind up being very important in this case,
Speaker 1: because remember, the question is is Miranda a constitutional right
Speaker 1: that can give rise to such a federal civil rights
Speaker 1: suit like the one that Mr Tico is trying to bring.
Speaker 1: Here the chief Justice clerk for ren Quist, what did
Speaker 1: he say about the opinion and rend quist intention. So
Speaker 1: I found Roberts to be interesting at this argument because
Speaker 1: he said a couple of things that I really think
Speaker 1: went both ways. So on the one hand, he Roberts
Speaker 1: pointed out that if it wasn't for the Constitution, you
Speaker 1: wouldn't have this Miranda ruling, and you wouldn't be able
Speaker 1: to keep unwarned confessions out of evidence. So he asked
Speaker 1: Vegas lawyer, why isn't this a right that's secured by
Speaker 1: the Constitution? And so that type of question could lead
Speaker 1: one to think that, well, maybe Roberts is thinking along
Speaker 1: the lines of the plaintiff wanting to be able to
Speaker 1: sue here. But on the other hand, Roberts told the
Speaker 1: lawyer for the plaintiff how Ranked Whist was someone who
Speaker 1: was careful with his words, and so in the Dickerson case,
Speaker 1: how Ranklist pointed out or at least didn't explicitly say
Speaker 1: miranda is a constitutional right. He talked about constitutional underpinnings,
Speaker 1: constitutional basis, and so Roberts, who cleared for Ranklist, said
Speaker 1: things that could have gone both ways that the argument.
Speaker 1: But if his words to Tico's lawyer are to be
Speaker 1: representative of how he views the case, then he's someone
Speaker 1: who maybe doesn't see miranda as this constitutional right which
Speaker 1: can give rise to a federal civil rights suit. Did
Speaker 1: you get a feel for how many of the justices
Speaker 1: might decide that miranda does not provide a constitutional right.
Speaker 1: So I think that it was fair to say that
Speaker 1: some comments from Avanaugh and Barrett were also along the
Speaker 1: lines of the Chief Justice. An interesting part of the
Speaker 1: argument to me was an exchange between the deputy's lawyer
Speaker 1: and Justice Thomas, because the deputy is pointing to a
Speaker 1: case that came after Dicker's it called Chaves, where a
Speaker 1: plurality of the court meaning less than a majority effectively
Speaker 1: endorsed the view that Miranda isn't a constitutional right exactly,
Speaker 1: and is more of what's called this prophylactic rule, a
Speaker 1: preventative rule, not a constitutional right per se. And so
Speaker 1: at the argument, the deputy's lawyer brings that up. And
Speaker 1: so you might think Justice Thomas, who is actually the
Speaker 1: one who wrote that plurality opinion in Javis, might be
Speaker 1: wanting to go along with that. But it was interesting
Speaker 1: to me that Thomas himself pointed out he couldn't get
Speaker 1: a majority in that case. Let's listen to part of
Speaker 1: that exchange, and the Chaves plurality I think addresses this
Speaker 1: issue head on, and it says that because Miranda's judicially
Speaker 1: created prophylactic rule, the violation of that rule doesn't violate
Speaker 1: anyone's constitutional rights. And that's consistent, as I was saying earlier,
Speaker 1: with what the Court had previously said in cases like
Speaker 1: Pain and Elstad. Yeah, but I couldn't get a majority
Speaker 1: in Shav, so the that I don't know how much
Speaker 1: that does for you. Um. So that's not to say
Speaker 1: that if Thomas can get more people on board this time,
Speaker 1: that maybe now he can accomplish what he wasn't able
Speaker 1: to accomplish in the Chavez case, and so he just
Speaker 1: might given changes in the court between two thousand three
Speaker 1: and now. And so whether that's exactly going to happen,
Speaker 1: I think or means to be seen, but it's certainly
Speaker 1: a possibility. That's what happens when you're on the court
Speaker 1: this long you see changes. Has the court in the
Speaker 1: past been cutting back on these kinds of suits against
Speaker 1: police officers under this oh, I think that's certainly fair
Speaker 1: to say, as a general matter, as Kavanaugh put it
Speaker 1: at the argument, in some ways they're looking to not
Speaker 1: extend precedents. And so whether someone sees that as even
Speaker 1: cutting back on them, or at least not extending them,
Speaker 1: is certainly fair to say that no precedents are going
Speaker 1: to be extended at the court. But certainly in these
Speaker 1: types of suits, I think it's fair to say that
Speaker 1: the court certainly hasn't been in the business of expanding
Speaker 1: them generally. I don't know if this case is necessarily
Speaker 1: going to fall into that category. It's really going to
Speaker 1: be interesting to see how it turns out. But you
Speaker 1: have to think that anybody who's trying to bring a
Speaker 1: claim like Tico in this case, or defending the type
Speaker 1: of claim that Tico's bringing, because it was actually the
Speaker 1: deputy who petitioned for certain here that they have a
Speaker 1: tough road at this court. Not impossible, but certainly a
Speaker 1: tough road. It'll be so interesting to see what happens here.
Speaker 1: Thanks so much, Jordan's that's Bloomberg Law reporter Jordan Ruben,
Speaker 1: that's great. Did you advocated the President Trump to impose
Speaker 1: martial law as a way to remain in power? I
Speaker 1: don't recall, yes, so you're not denying did it? You
Speaker 1: just don't remember. I don't remember. That was Congresswoman Marjorie
Speaker 1: Taylor Green's answer to question after question. She didn't remember
Speaker 1: her own statements or social media posts, whether it was
Speaker 1: advising former President Donald Trump to invoke martial law or
Speaker 1: calling on supporters to flood the Capitol Building and the
Speaker 1: Georgia congresswoman denied calling Speaker Nancy Pelosi a traitor to
Speaker 1: her country until the plaintiff's lawyer showed a quotation from
Speaker 1: her saying that do you think that Speaker Pelosi is
Speaker 1: a trader to the country? Right, You're I'm not answering
Speaker 1: that question. Of speculation. You've said that, having you in
Speaker 1: this Green, that she's a trader to the country. No,
Speaker 1: I haven't said that. Put up pens Exhibit five please,
Speaker 1: oh no, wait hold on now, I believe by not
Speaker 1: upholding the securing the border that that violates her oath
Speaker 1: of office. Green is set to appear on the Republican
Speaker 1: ballot for the States May primary and has been endorsed
Speaker 1: by former President Donald Trump, but voters in her district
Speaker 1: have said that Green helped facilitate the January six insurrection,
Speaker 1: making her inelig wable for reelection under a rarely sided
Speaker 1: section of the fourteenth Amendment dealing with insurrection or rebellion.
Speaker 1: Green has repeatedly denied aiding or engaging in an insurrection,
Speaker 1: and has filed a lawsuit alleging that the law of
Speaker 1: voters are using to challenge her eligibility is itself unconstitutional.
Speaker 1: Here's Ron Fayne, legal director of Free Speech for People,
Speaker 1: which is representing Georgia voters, and James Bob Green's lawyer.
Speaker 1: She urged and encourage and health facilitate violent resistance to
Speaker 1: our own government, our democracy, and our constitution, and in
Speaker 1: doing so she engaged in exactly the type of conduct
Speaker 1: that triggers disqualification under Section three of the Fourteenth Amendment,
Speaker 1: which is to say she engaged in insurrection. The challenges
Speaker 1: will try to use the First Amendment protected political speech
Speaker 1: of reference and brain as evidence of clothes. Engaging in
Speaker 1: an insurrection are rebellion. That's unconstitutional and should not be allowed.
Speaker 1: Joining me is Richard bald, a professor at Columbia Law School.
Speaker 1: Rich tell us about this unusual use of the Fourteenth Amendment.
Speaker 1: So there's a provision in the Constitution, in the fourteenth Amendment,
Speaker 1: which was adopted by Congress and ratified by the people
Speaker 1: right after the Civil War, that was designed to deny
Speaker 1: people who had taken the oath of office of the
Speaker 1: United States the senators or congressman, and then who had
Speaker 1: joined up with the South and the Civil War and
Speaker 1: basically went into rebellion. In the language the Constitution uses,
Speaker 1: anybody who actually swore north of allegiance the United States
Speaker 1: as a member of Congress and then engaged in insurrection
Speaker 1: or rebellion against the United States would be denied the
Speaker 1: ability to serve in Congress again unless Congress by two
Speaker 1: thirds votes that they could. I mean, there's a little
Speaker 1: bit more to it than that, but that's the essence
Speaker 1: of it. If you took an oath of office the
Speaker 1: member of Congress, then you engage in insurrection or rebellion,
Speaker 1: you are not eligible to serve again in Congress. And
Speaker 1: the argument that's been raised perspect to a number of
Speaker 1: members of Congress who, like Marjorie Taylor Green, been brought
Speaker 1: by by voters in their districts is that she and
Speaker 1: Madison Carthon from North Carolina and a couple of congressmen
Speaker 1: from Arizona were connected to the attack on Congress January
Speaker 1: six in connection with the electoral College, that they were
Speaker 1: either involved in the planning of or they knew about it,
Speaker 1: or in some way or form gave aid and comfort
Speaker 1: to the insurrection. So that's the argument, is that because
Speaker 1: she gave an aid and comfort to the insurrection um
Speaker 1: January six, she is not eligible to be placed on
Speaker 1: the ballot. This argument has failed with respect to Madison
Speaker 1: Cawthorne in North Carolina and was just last week's thrown
Speaker 1: out with respected two congressmen, including goes Are in Arizona.
Speaker 1: But the federal judge in Georgia said there was enough
Speaker 1: there in the allegations that Marjorie Taylor Green would have
Speaker 1: to go before in the minustrate of law judge, a
Speaker 1: state judge in Georgia and basically be examined by the
Speaker 1: groups that are arguing that she's just should be disqualified
Speaker 1: about her role in the events of January six. She
Speaker 1: said a lot of, you know, other inflammatory things about
Speaker 1: the election, but I've denied being involved in planning or
Speaker 1: supported that there would be violence. When was the last
Speaker 1: time the fourteenth Amendment was used in this way. I'm
Speaker 1: not sure that it's been used at all, but certainly
Speaker 1: it's it's very little about it that has known. I mean,
Speaker 1: you know, it may have been used in incidents in
Speaker 1: the mediate post Civil War period. I'm not familiar with
Speaker 1: there being any modern cases using it. So it's it's
Speaker 1: it's elicited a lot of debate. There was a boot
Speaker 1: these in the Times the other day saying that it's
Speaker 1: not self enforcing, that Congress doesn't have to pass a law.
Speaker 1: There's an argument that's been made by Marjorie Taylor Green's lawyer,
Speaker 1: and I think was also for the same lawyer from
Speaker 1: Madison Clothorne that Congress several years after this amendment was
Speaker 1: passed passing the owners the Amnesty Act, freeing most people
Speaker 1: of the um the restrictions of the fourteen Amendment except
Speaker 1: for members of Congress who had served in Congress during
Speaker 1: the opening years of the Civil War and people like that.
Speaker 1: On the other hand, some people have arguable that doesn't
Speaker 1: make any sense, that that that it's not clear that
Speaker 1: they intended to not have this ever applying in in
Speaker 1: the future. So there is an argument that that law,
Speaker 1: the Amnesty Act of eighteen seventy two, which seems to
Speaker 1: limited to people who had actually been in Congress in
Speaker 1: the eighteen sixty three period, that would basically mean that
Speaker 1: that this amendment could never be enforced. So there's a debate,
Speaker 1: you know, as to whether or not this is self executing,
Speaker 1: that is to say, whether the provision itself does the work,
Speaker 1: or you need a law in Congress. Whether the law
Speaker 1: Congress passed in the eighteen seventies basically allowing most people
Speaker 1: who had lower level positions took the oath, like the
Speaker 1: people in the army who took the oath and then
Speaker 1: switched to the Confederate side, were free other than people
Speaker 1: sat in Congress in that period. And then of course
Speaker 1: there's a question as to whether or not what she
Speaker 1: and these other members of Congress did counts as giving
Speaker 1: eight and to the insurrection, whether it was an insurrection,
Speaker 1: and whether she was involved in it, especially in the
Speaker 1: absence of any formal indictments by the Justice Department of
Speaker 1: anybody accusing them of having participated in an insurrection. So
Speaker 1: it seems to me it's kind of a stretch, but
Speaker 1: it's an interesting argument. The defense attorney objected to a
Speaker 1: lot of the questions of Marjorie Tillagreen by saying it
Speaker 1: violated her right of free speech. So where does free
Speaker 1: speech end and insurrectionist talk begin. That's, of course one
Speaker 1: of the big underlying question here, and involving not just
Speaker 1: her but many of the people who are involved in
Speaker 1: the events of January six, who argue that what they
Speaker 1: were doing with speech Obviously a lot of them went
Speaker 1: well beyond speech. In her case, you know, we don't know,
Speaker 1: I mean, you know, we don't know enough about what
Speaker 1: she was doing behind the scenes as to whether or
Speaker 1: not she was actively supporting an attack on Congress or was,
Speaker 1: as she says, only supporting a protest of what she
Speaker 1: claimed she believes was a fraudulent vote, and it's just
Speaker 1: very hard to know. I know that the January six
Speaker 1: Committee in Congress is exploring some of this, but you
Speaker 1: know that is one question is to how far in
Speaker 1: terms of the kinds of statements and actions she took,
Speaker 1: how far did she get beyond sort of permissible political
Speaker 1: opposition and enter into insurrection. I mean, you can ask
Speaker 1: that questions come up again with kind of members of
Speaker 1: the Trump administration and maybe President Trump themselves. The judge
Speaker 1: doesn't make the final call here explain what happens. So
Speaker 1: this is whre an administrative law judge in Georgia. He
Speaker 1: will then make a recommendation to the Secretary of State
Speaker 1: of Georgia, Brad Rathnsburger, who is the ultimate decisions to
Speaker 1: whether or not to take her off the ballot. And
Speaker 1: I think that's got to be reasonably soon because they
Speaker 1: have a primary coming up. So again, this is I
Speaker 1: think the only one of the cases that have been
Speaker 1: brought which has gotten this far. In other cases the
Speaker 1: federal judges sort of dismissed them outright, but the federal
Speaker 1: district court judge and Georgia said there's enough here at
Speaker 1: least to support a hearing some people argue that this
Speaker 1: is the wrong way to go about this, that if
Speaker 1: they want to get rid of Marjorie Tella Green, they
Speaker 1: should work to get her voted out of office. Yeah,
Speaker 1: I mean, you could argue, I mean, I understand that point,
Speaker 1: And certainly there's a concern that if you do it
Speaker 1: this way, she just becomes a martyr. On the other hand,
Speaker 1: if she lives in you know, she's in a solidly
Speaker 1: one party district, it's hard to not to primary. And
Speaker 1: if she is in fact engaged in you know, insurrectionary
Speaker 1: treasonous activities, there's a there is grounds for removal, although
Speaker 1: it could be that the better way to do it
Speaker 1: would be for Congress to do it, and of course,
Speaker 1: given the partisanship of Congress, that's unlikely to happen. So,
Speaker 1: you know, it's it's attention here. It's both at the
Speaker 1: level of speech versus rebellion, but also kind of the
Speaker 1: level of politics and law, as this ultimately so political
Speaker 1: that you know, it's for the voters or for Congress
Speaker 1: as a whole. And do we are we comfortable with
Speaker 1: judges making these kinds of decisions, But there is a
Speaker 1: constitutional provision there that does say that people who have
Speaker 1: you know, engaged in insurrection or aid and gave aid
Speaker 1: and protein insurrection should not as having previously taken an
Speaker 1: oath um of office to support the constitution and specifically
Speaker 1: including members of Congress, that breaking that oath in this
Speaker 1: way disqualifies them. So there is that provision there which
Speaker 1: can you talk a little bit about what's happening in
Speaker 1: New York with the maps? Yeah, yeah, it's a little complicated.
Speaker 1: So in New York State amended its constitution. The voters
Speaker 1: approved it to move New York towards an independent redistriant
Speaker 1: commission type process. And commission was created with a point
Speaker 1: Republican and Democratic appointees and they were charged with developing
Speaker 1: maps for the two state chambers of the state legislature
Speaker 1: and the congressional districts um and they were told there
Speaker 1: was a process that laid out in the constitution for
Speaker 1: them to do that, and they of course needed to
Speaker 1: have a super majority of their commission that so there
Speaker 1: will be at least some people from both parties supporting
Speaker 1: their recommendation. Well, they couldn't do that. The commission was divided,
Speaker 1: and so there was not a recommended and in fact
Speaker 1: they submitted two maps, two sets of maps, I should
Speaker 1: say that kind of let's holding the Democratic maps and
Speaker 1: the Republican maps, each each of which got a vote
Speaker 1: of half the commission, but not a majority. Uh something
Speaker 1: not the supermajority of the constitution required. The state Constitution
Speaker 1: then said that the legislature is supposed to either accept
Speaker 1: those maps of the map or rejected, but they can't
Speaker 1: amend it. And if they rejected, the commission was to
Speaker 1: send a second set of maps. Well, what happened this
Speaker 1: time is the legislatures said, well, here we got these
Speaker 1: commission is divided, forget it. We're just going to write
Speaker 1: our own uh, and so the commission. So they rejected
Speaker 1: the commission's maps, didn't wait around for a second set
Speaker 1: of maps to come from the Commission, but just did
Speaker 1: their own. And those maps the legislature right now, with
Speaker 1: Democratic majorities in both chambers, Democratic governor, they passed maps
Speaker 1: which UM, many people believe favorite Democrats. Uh. Those maps
Speaker 1: have been challenged um and the trial court basically, Uh,
Speaker 1: it's interesting the Republicans brought the challenges. They challenged only
Speaker 1: the congressional maps and the maps for the state Senate,
Speaker 1: not the map for the state lower house. The trial
Speaker 1: court uh concluded that the maps were an effect doubly unconstitutional.
Speaker 1: One was that they were um um that they violated
Speaker 1: the constitutional procedure of because there was never a second
Speaker 1: recommendation from the independent re District Commission. And also and
Speaker 1: so that leeds to throwing out even the map for
Speaker 1: the lower House, which Reroblicans had and challenged. And then
Speaker 1: he also said that the maps, I think at least
Speaker 1: a map, the congressional map was was a partisan gerry
Speaker 1: manager in violation of another new provision of the state constitution,
Speaker 1: which that basically no partisan jerry manders. Um the that
Speaker 1: the Intermediate Court of Appeals issued a decision on that
Speaker 1: I think last week, basically disagreeing with the point about
Speaker 1: the process and basically said that in effect that given
Speaker 1: the deadlock and the commission, it was okay for the
Speaker 1: legislature to begin the process of passing its own maps,
Speaker 1: which restored the assembly map, but basically agreed that there
Speaker 1: was a partisan gerrymanager for the congressional map, and there
Speaker 1: I think they divided on that three to two. So
Speaker 1: that's going to go to the Court of a Pilsne
Speaker 1: or state's highest Court, So I think conceivably they could
Speaker 1: take up the question again about whether or not the
Speaker 1: process was unconstitutional, in which case all the maps are invalid,
Speaker 1: or they could just agree with the lower court that
Speaker 1: the process was okay given the deadlock in the commission,
Speaker 1: and then just focus on whether or not there was
Speaker 1: a Jerrymander. Thanks for being on the show, rich that's
Speaker 1: Professor Richard Rafault of Columbia Law School. Two formally married
Speaker 1: Hollywood stars suing each other for defamation. Johnny Depp is
Speaker 1: suing his ex wife Amber Heard for fifty million dollars
Speaker 1: over op ed piece she wrote in The Washington Post
Speaker 1: referring to herself as a quote public figure representing domestic abuse.
Speaker 1: Heard has counterclaim with a information suit of her own
Speaker 1: for one million dollars. While the lawsuit centers on whether
Speaker 1: Depp was defamed in the op ed. In four days
Speaker 1: on the Stand, Depth testified about everything from childhood abuse
Speaker 1: to a near mental breakdown. Never did I myself reached
Speaker 1: the point of h striking Misheard in any way, nor
Speaker 1: have I ever struck any woman in my life. My
Speaker 1: guest is defamation lawyer Jeff Lewis of Jeff Lewis law.
Speaker 1: Johnny Depp lost a British case in the actors sued
Speaker 1: the Sun newspaper for printing a headline that called him
Speaker 1: a quote wife beater. A judge found that there was
Speaker 1: overwhelming evidence that Depp had assaulted her repeatedly during their
Speaker 1: marriage and that he had put her in fear of
Speaker 1: her life. Did Depp testify in that case? He did testify,
Speaker 1: although in this present case he is testifying extensively. His
Speaker 1: answers are longer, he's emoting more. Everyone thinks he's suing
Speaker 1: to revive his career because he doesn't want the outcome
Speaker 1: of the British court to be the last word on
Speaker 1: these allegations. So even if he doesn't win this case,
Speaker 1: he wants all the testimony that's being videotaped and put
Speaker 1: on Twitter that to be the final word on these allegations.
Speaker 1: That's really why sue to restore his career and explain
Speaker 1: the defamation claims. Yeah. Look, Pard wrote this op ed
Speaker 1: piece in the Washington Post that says she was a
Speaker 1: victim of domestic abuse. She didn't name Johnny Depp by name.
Speaker 1: That Johnny has testified in court, and I'm sure he'll
Speaker 1: have others testified that everybody understood who she was talking about.
Speaker 1: And by the way, she countersued for defamation, So it's
Speaker 1: not just his claims against her, but she's counter suit
Speaker 1: for defamation. Her counter suit is based on things that
Speaker 1: his former lawyer said. Yeah, very very unusual theory there.
Speaker 1: The theory is that Johnny Depp and his prior lawyer
Speaker 1: conspired to make these harmful statements about Amber heard. One
Speaker 1: of the interesting things is when you're dealing with a
Speaker 1: public figure plaintiff or cross complaint, you have to prove
Speaker 1: things like malice, that the person who spoke said things
Speaker 1: without a belief they were true or reckless disregarded. Here,
Speaker 1: it's an odd situation where Johnny Depp is being sued
Speaker 1: for statements made by his lawyer. Whose state of mind
Speaker 1: is that issue? Is that his lawyer state of mind
Speaker 1: or Johnny state of mind in terms of malice, who
Speaker 1: knew what was said was false? How can he be
Speaker 1: held responsible for something that his former lawyer said and
Speaker 1: the lawyers not being sued. Yes, it's very unusual theory there. Uh.
Speaker 1: The theory is under conspiracy liability, you could be liable
Speaker 1: for making an agreement with someone to do something that
Speaker 1: by lead to the law. You and I agreed on
Speaker 1: this podcast today to say false things about somebody you
Speaker 1: could be liable for things that I say. What does
Speaker 1: he have to prove in his case, Well, he's got
Speaker 1: to prove that he didn't abuse her. He's got a
Speaker 1: refute the allegation in the opening statement, the new allegation
Speaker 1: in this trial that there was sexual assault. That's not
Speaker 1: something that came up in the prior trial in England.
Speaker 1: And the hardest thing he's got to prove is that
Speaker 1: when ever heard wrote this off ed, she knew what
Speaker 1: she said was false or had reckless disregard to whether
Speaker 1: it was false. How well did he do during his
Speaker 1: testimony on direct I think he's done very well. On Direct.
Speaker 1: He's brought up some things that the public has heard
Speaker 1: about for the first time, for example, his abuse by
Speaker 1: his mother as a child, physical abuse. He's been very
Speaker 1: forthright about his substance abuse. And keep in mind, this
Speaker 1: case is not really about substance abuse or whether or
Speaker 1: not she accused him of usince apiece. It's goot domestic violence,
Speaker 1: and he's testified how his life was destroyed by these allegations.
Speaker 1: Book in terms of losing his career and on the
Speaker 1: personal front, and it's been pretty pretty impactful. One of
Speaker 1: the things that stood out as far as was her
Speaker 1: throwing a bottle at him and severing his finger. Yeah,
Speaker 1: that that incident is a real headliner for a lot
Speaker 1: of reasons. First of all, there's testimony by him that
Speaker 1: he used the tip of his finger to write messages
Speaker 1: in blood on the walls after that injury, and he
Speaker 1: says that she's responsible for that injury. Amber Heard has,
Speaker 1: through lawyers, cast out on that story, suggesting that he
Speaker 1: injured himself and that she was not responsible. What problems
Speaker 1: do you see with his cross examination? Well, in cross examination,
Speaker 1: he has come out as somebody who is explosive, who
Speaker 1: has temper issues, who abuses drugs. There's been crumful photographs
Speaker 1: of him falling asleep in a chair with ice cream
Speaker 1: melting into a pool at his feet. But some observers
Speaker 1: think that some of that testimony or is backfired insofar
Speaker 1: as it makes him sympathetic that amber Heard is taking
Speaker 1: pictures of him at his lowest moments, that he was
Speaker 1: driven to the point of self harming he's testified to
Speaker 1: and that he was using substances as a response to
Speaker 1: the abuse he was suffering at her hands. So I
Speaker 1: think on balance, he's done everything he's needed to do
Speaker 1: in terms of testifying and getting sympathy from a jury
Speaker 1: in this whole case is really going to turn on
Speaker 1: her credibility, and especially these new allegations about sexual assault
Speaker 1: and whether a jury believes that that sexual assault occurred.
Speaker 1: What was the most damaging part of the cross examination? Well,
Speaker 1: I think the most harmful testimony was a sound bite
Speaker 1: that was played. Johnny Depp is heard saying to her
Speaker 1: that a blood bath is going to occur if they
Speaker 1: don't go their separate days. That's pretty harmful. The violence
Speaker 1: that he shows in terms of damaging hotel rooms and
Speaker 1: his kitchen, and the text messages that he sends two
Speaker 1: friends describing Amber heard are not flattering. Does he have
Speaker 1: anything besides his word to back this up? For example,
Speaker 1: with his finger, he didn't tell the doctors in the
Speaker 1: emergency room what had really happened. So does he have
Speaker 1: a problem with backing up these allegations that she was
Speaker 1: the violent one. Yeah, that's the That's the real crux
Speaker 1: of this case. In these private moments when these things
Speaker 1: happen with just she and he are there in the
Speaker 1: room alone. There is not a whole lot of corroborating testimony.
Speaker 1: And he told the jury that he lied to the
Speaker 1: e R doctors to protect basically to protect the Amber
Speaker 1: Heard and not put his personal business out there. The
Speaker 1: question is, you know, will a jury believe that in
Speaker 1: the moment at the R he was covering for her
Speaker 1: or that he was being truthful. He claims that it
Speaker 1: cost him acting jobs, but Heard's lawyer is going to
Speaker 1: claim or has claimed that the damage was already done
Speaker 1: to his career, that his career was already on a
Speaker 1: downward trajectory. That's right. You know, in every case it
Speaker 1: has to prove causation. That's something that offendant did caused
Speaker 1: harm to the plane off and Amber Heard lawyers have
Speaker 1: done an effective job of showing, for example, that Disney
Speaker 1: had already decided to cut Johnny Depp out of the
Speaker 1: Pirates franchise before that offense ever was published. But keep
Speaker 1: in mind, to win this case, because we're talking about
Speaker 1: defamation per se, because we're Johnny Depp has been accused
Speaker 1: of criminal conduct domestic violence, he doesn't have to tie
Speaker 1: any of her false statement to any specific damages to win,
Speaker 1: he only has to prove causation to win a huge
Speaker 1: monetary verdict. But if all he wants the verdict from
Speaker 1: the jury saying Johnny Depp was right and Amber Heard lied,
Speaker 1: he might get that. But without proving causation, he's not
Speaker 1: going to get much in the way of money. How
Speaker 1: will he have to prove damages? He'd have to prove,
Speaker 1: for example, that the Disney executives or maybe more apt,
Speaker 1: the Warner Brothers executives that made decisions about the Harry
Speaker 1: Potter franchise, that they made decisions on whether to cast
Speaker 1: him or not cast him a pull production based on
Speaker 1: the op ed and not any of the other rumors
Speaker 1: swirling him around. Johnny Depp, was there testimony that backed
Speaker 1: up his claims were in his case now? Still, it
Speaker 1: was a couple of interesting points there. One, there's lots
Speaker 1: of photographs of amber Heard walking the runway at times
Speaker 1: where she claims she was abused and had bruises all
Speaker 1: over her body, and you don't see those in the
Speaker 1: red carpet photos. The other interesting kind of side issue
Speaker 1: that's come up was an issue via a makeup company
Speaker 1: during opening statements, Amber Heard's lawyers stood up to the jury,
Speaker 1: it held up a makeup case, said Amber Heard used
Speaker 1: this makeup case to cover up her bruising caused by
Speaker 1: Johnny Depp. But it turns out, according this makeup company,
Speaker 1: that particular brand and makeup didn't exist when the abuse
Speaker 1: allegedly occurred, and so that may come back to haunt
Speaker 1: Amber Heard as lacking credibility in terms of abuse. A
Speaker 1: therapist they went to said that they were mutual abusers.
Speaker 1: If that's the case, does Amber Heard win? In other words,
Speaker 1: if it's proven that they both abused each other, You know,
Speaker 1: that's a great question. I don't know why they called
Speaker 1: this witness because the therapist did use the term mutual abuse,
Speaker 1: and if the jury walks away from that speaking mutual
Speaker 1: emotional abuse, well then maybe Johnny Depp can still win.
Speaker 1: But if the jury takes that testimony of that therapist
Speaker 1: to be mutual physical abuse, then this case is over.
Speaker 1: If you were the lawyer for Amber Heard, what would
Speaker 1: you vise her about her testimony coming up? She's got
Speaker 1: to be well prepared for cross examination because the whole
Speaker 1: case comes down to her. I think if you think
Speaker 1: that social media is an accurate read of how maybe
Speaker 1: the jury might be taking Johnny Depp's testimony. Social media
Speaker 1: is very favorable as to Johnny Depp, and so what
Speaker 1: I ever heard has to do is to prove up
Speaker 1: what was promised during opening statements, meaning the sexual assault
Speaker 1: allegation that's brand new. Why didn't this come up during
Speaker 1: the proceedings in England? Why is this coming up for
Speaker 1: the first time in this trial. She's got to be
Speaker 1: prepared to answer that question, and she has to come
Speaker 1: off as credible and not endictive. And she's got to
Speaker 1: explain why, in terms of all the bruising that she
Speaker 1: claims occurred, why there's no photographic evidence of that when
Speaker 1: she walked the red carpet at certain premieres. Her lawyer
Speaker 1: has released a potential witness list which includes Elon Musk
Speaker 1: and James Franco. Are though good witnesses or do they
Speaker 1: bring a lot of baggage with them? Yes, and yes
Speaker 1: and yes. So witnesses like this. You know, jurors can't
Speaker 1: get star struck just like anybody else. But at the
Speaker 1: end of the day, it's what these witnesses might say
Speaker 1: in our three or four or five of their testimony
Speaker 1: after the shock of seeing a celebrity on the stand
Speaker 1: wears off that's really going to count. But also would
Speaker 1: keep in mind I'm a trial lawyer, and trial lawyers
Speaker 1: often pack the witness list at trial with all sorts
Speaker 1: of witnesses that they might call. Maybe, but just because
Speaker 1: somebody's on a witness list doesn't mean they're gonna show up.
Speaker 1: And most of the time, the witnesses on a witness
Speaker 1: list don't show up. So I would have been on
Speaker 1: Elon Musk taken by the way, Elon Musk's deposition was
Speaker 1: never taken. As a trial lawyer, you never want to
Speaker 1: put somebody on the stand if you don't know really
Speaker 1: what they're gonna say. And that rule applies doubly to
Speaker 1: Elon Musk is a little bit of a wild card.
Speaker 1: So I would be really surprised if the Musk testifies
Speaker 1: a trial. What other interesting issue is Johnny Depth's longtime
Speaker 1: friends with Robert Downey Jr. And I don't know if
Speaker 1: you were called rock. Downey Jr. Had some serious problems
Speaker 1: out here in California in terms of drug use, breaking
Speaker 1: to someone's house, and he even serves the time, and
Speaker 1: yet he's able to overcome all that and become a
Speaker 1: huge Hollywood star notwithstanding those issues. And I suspect Johnny
Speaker 1: Depp with this case, he's trying to follow the playbook
Speaker 1: that Robert County Jr. Dated in terms of getting the
Speaker 1: truth out there and rehabilitating his career. Thanks Jeff. That's
Speaker 1: defamation lawyer Jeff Lewis of Jeff Lewis Law. And that's
Speaker 1: it for this edition of The Bloomberg Law Show. Remember
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Speaker 1: June Grosso and you're listening to Bloomberg three