WEBVTT - Weekend Law: Rapper's Trial, Double Jeopardy & Voting Rights 0:00:00.760 --> 0:00:03.480 Welcome to the Bloomberg Law Show. I'm June Grosso. I 0:00:03.480 --> 0:00:06.520 had in this hour. The Supreme Court appears ready to 0:00:06.600 --> 0:00:10.320 limit the powers of the sec. The justices deal with 0:00:10.400 --> 0:00:14.800 a question of double jeopardy, Conservative appellate judges deal a 0:00:14.880 --> 0:00:19.120 severe blow to the Voting Rights Act, and prosecutors are 0:00:19.239 --> 0:00:22.960 using a rapper's lyrics against him in a racketeering trial. 0:00:29.000 --> 0:00:35.360 This is Bloomberg Law with June Grusso from Bloomberg Radio. 0:00:36.440 --> 0:00:41.240 Tuggar, I never killed anybody, but I got something's doing 0:00:41.320 --> 0:00:44.440 about it. I got this grease on my bag, carry 0:00:44.720 --> 0:00:46.920 like I'm move in the body. I told him to 0:00:46.920 --> 0:00:49.400 shoot a hunt around like he's trying to move to 0:00:49.479 --> 0:00:51.920 bout it. He would light them in the mountain and 0:00:52.080 --> 0:00:53.760 just get the school. That's truancy about it. 0:00:54.160 --> 0:00:59.160 That's Grammy's winning rapper Young Thugs twenty eighteen song called Anybody, 0:00:59.520 --> 0:01:02.240 and prosecutors are going to use those lyrics in the 0:01:02.360 --> 0:01:05.880 racketeering case against him, saying it's a reference to a 0:01:06.000 --> 0:01:09.560 killing he ordered. Young Thug, whose real name is Jeffrey 0:01:09.640 --> 0:01:14.280 Lamar Williams, is on trial with five other defendants in Atlanta, Georgia, 0:01:14.640 --> 0:01:18.360 in a sprawling racketeering case in which the state accuses 0:01:18.440 --> 0:01:21.360 him of leading a criminal street gang fronted by his 0:01:21.520 --> 0:01:25.680 record label, a gang that committed a slew of violent crimes, 0:01:25.680 --> 0:01:30.120 including murder. Lawyers for the influential rappers say he's innocent 0:01:30.160 --> 0:01:33.520 of any crimes, that he's an artist with a successful 0:01:33.600 --> 0:01:37.560 record label and his lyrics are just art. Joining me 0:01:37.640 --> 0:01:40.160 is Michael Moore, the former US Attorney for the Middle 0:01:40.200 --> 0:01:43.560 District of Georgia and a partner at Moore Hall. This 0:01:43.640 --> 0:01:47.360 sort of sounds like a movie script because Georgia is 0:01:47.400 --> 0:01:51.440 accusing this Grammy winning rapper of leading a street gang 0:01:51.480 --> 0:01:56.280 that's fronted by his record label, and the crimes include 0:01:56.480 --> 0:02:00.080 killings and shootings and carjackings. 0:01:59.760 --> 0:02:03.480 Right, And it's easy, remember, to charge people with a crime, 0:02:03.520 --> 0:02:06.840 and sometimes harder to prove that. And so the state 0:02:06.920 --> 0:02:09.079 they'll have to come forward and put on some evidence 0:02:09.360 --> 0:02:13.840 that the main defendant was really in control of what 0:02:14.080 --> 0:02:16.560 was going on by other people on the street. I 0:02:16.600 --> 0:02:19.600 think that gets harder to do if we just have 0:02:19.760 --> 0:02:23.720 realistic conversations about what actually happens in the real world 0:02:23.800 --> 0:02:26.320 in certain neighborhoods and areas of town, and you know, 0:02:26.400 --> 0:02:28.280 that type of thing, and the prosecutors will have to 0:02:28.320 --> 0:02:31.640 explain how that's not just what i'll call street level crime, 0:02:31.960 --> 0:02:35.720 but was actually part of this larger umbrella that they've 0:02:35.800 --> 0:02:37.560 charged as part of this Rico case. 0:02:37.880 --> 0:02:41.400 Tell us about the Rico indictment of what the prosecution 0:02:41.520 --> 0:02:42.080 is charging. 0:02:42.600 --> 0:02:47.240 Rico really deals with racketeer influenced corrupt organizations, and if 0:02:47.240 --> 0:02:49.600 you think about it, maybe in layman's terms, that's really 0:02:49.720 --> 0:02:52.600 talking about things like organized crime. And so you saw 0:02:52.680 --> 0:02:56.280 some reco cases that is going after these organizations the 0:02:56.320 --> 0:02:59.320 mob basically where they would try to take down the 0:02:59.360 --> 0:03:03.600 mob leader by essentially attributing the bad conduct of his 0:03:03.760 --> 0:03:06.600 underlings to him. In other words, they didn't have to 0:03:06.639 --> 0:03:09.920 find the mafia don pull of the trigger. They could 0:03:09.960 --> 0:03:12.440 actually have a murder committed by somebody else, but they 0:03:12.440 --> 0:03:14.880 could talk about this was a goal and an effort 0:03:14.960 --> 0:03:18.520 of this criminal enterprise to either obtain money or property, 0:03:18.560 --> 0:03:21.400 and that's how they went after the organization. Recently, you've 0:03:21.400 --> 0:03:24.560 seen Rico case is used not only in drug conspiracy 0:03:24.600 --> 0:03:27.639 type cases, but also there was one relatively well known 0:03:27.639 --> 0:03:30.480 case in Atlanta where a Rico case was used involving 0:03:30.520 --> 0:03:33.760 public schools and the cheating scandal. Some of those people. 0:03:33.919 --> 0:03:36.200 I think indications may've got some of them reversed. That 0:03:36.280 --> 0:03:39.440 somen certainly were convicted, And probably the most famous one 0:03:39.480 --> 0:03:41.320 right now that we're hearing about is a Trump campaign. 0:03:41.400 --> 0:03:44.839 But it's a prosecutor's dream really because it allows them 0:03:44.920 --> 0:03:49.200 to basically paint everybody with the negative brush, and so 0:03:49.360 --> 0:03:51.839 they can bring in a lot of evidence. They get 0:03:51.880 --> 0:03:54.920 to attribute all the bad conduct of your Code Defendment 0:03:55.040 --> 0:03:57.640 to you if you're a defendant, and it's more of 0:03:57.680 --> 0:04:01.400 a I guess the case involving either directions to do wrong, 0:04:01.560 --> 0:04:04.120 or involvement to do wrong, or sometimes just knowledge of 0:04:04.240 --> 0:04:06.720 people who are doing wrong. All that evidence gets to 0:04:06.720 --> 0:04:07.880 come in, and at the end of the day, the 0:04:07.880 --> 0:04:11.080 prosecution asks the jury to convict you because you were 0:04:11.160 --> 0:04:16.000 part of this organization. So it's not an uncontroversial statute. 0:04:16.160 --> 0:04:19.080 Many people think that it allows prosecutors too much leeway 0:04:19.279 --> 0:04:21.760 in bringing cases and that they tend most of the 0:04:21.839 --> 0:04:25.800 time to be complex and involved and sometimes unruly. As 0:04:25.839 --> 0:04:26.520 you're saying in this. 0:04:26.560 --> 0:04:28.800 Case, what really interests me in this case is that 0:04:28.880 --> 0:04:33.520 the judge has ruled that prosecutors can use his lyrics 0:04:33.680 --> 0:04:36.560 as evidence of his involvement in the crimes. So they 0:04:36.560 --> 0:04:41.159 can present seventeen sets of lyrics as evidence, provided they 0:04:41.240 --> 0:04:44.760 can link their content to real world crimes that's been 0:04:44.800 --> 0:04:46.240 done before. Is it controversial? 0:04:46.279 --> 0:04:46.520 Though? 0:04:47.000 --> 0:04:49.320 It is controversial, and I don't know, frankly, how I 0:04:49.320 --> 0:04:52.240 feel about it. I think it's probably pushing the envelope 0:04:52.279 --> 0:04:54.840 a little bit. And while it's not the first time, 0:04:54.920 --> 0:04:57.159 so it's not really pressing a setting. There other cases 0:04:57.160 --> 0:04:59.159 where this has happened. I do think it raises some 0:04:59.160 --> 0:05:02.680 pretty unique questions about the First Amendment about you know, 0:05:02.880 --> 0:05:06.000 artists creativity and then whether or not later that can 0:05:06.040 --> 0:05:08.200 be used in a case. You can think about cases, 0:05:08.320 --> 0:05:10.880 you know, woe be it for any country music star 0:05:11.320 --> 0:05:13.960 to either be charged with drug driving or get a 0:05:13.960 --> 0:05:16.280 divorce because that's going to come up. Does that mean 0:05:16.279 --> 0:05:18.080 now that that's going to be effens in their case 0:05:18.640 --> 0:05:21.800 that they talked about, you know, drinking too many drinks 0:05:22.000 --> 0:05:25.120 or chasing too many paramoms or whatever the case may be, 0:05:25.279 --> 0:05:28.360 or you know, smoking too much weed or you know whatever, 0:05:28.560 --> 0:05:30.279 Is that now going to be the norm? And I 0:05:30.279 --> 0:05:33.240 think those are the kind of lines where this type 0:05:33.240 --> 0:05:36.160 of admission of evidence, of the specific type of evidence 0:05:36.360 --> 0:05:38.640 that it gets blurry fright, Then you know. I was 0:05:38.640 --> 0:05:40.680 thinking as I thought some about the case that if 0:05:40.720 --> 0:05:44.000 you're defending a case like this, or you're just representing 0:05:44.040 --> 0:05:46.880 a music artist, are you well advised to suggest to 0:05:46.920 --> 0:05:49.640 them to just write a couple of songs with really 0:05:49.680 --> 0:05:53.159 acceptable lyrics things like I love the police, I've never 0:05:53.200 --> 0:05:55.640 commit a crime, I don't do drugs, and say, well, 0:05:55.640 --> 0:05:58.000 here's evidence. Now, by good care, you know that's something 0:05:58.040 --> 0:06:01.320 that I'll go into jury. That the people who are 0:06:01.360 --> 0:06:04.200 prosecuting the case would say no. But somehow here this 0:06:04.240 --> 0:06:08.080 evident is coming in. It limiting instructions to to a jury, 0:06:08.080 --> 0:06:09.840 And that may be what the judge has in mind 0:06:09.880 --> 0:06:11.640 when he talks about you have to link it up, 0:06:11.680 --> 0:06:13.479 and this p may tell them, well, you can only 0:06:13.520 --> 0:06:15.200 consider this and it looks like it went to an 0:06:15.240 --> 0:06:18.719 actual crime. Those are often a little propylactic, enough about it. 0:06:19.000 --> 0:06:21.200 So do you think that admitting these lyrics will be 0:06:21.200 --> 0:06:22.200 an appellet issue. 0:06:22.320 --> 0:06:25.320 I think there's no question. It's here, are we getting 0:06:25.480 --> 0:06:27.760 our hands a little too tightly around the neck of 0:06:27.800 --> 0:06:31.000 the First Amendment and the free speech of people off 0:06:31.000 --> 0:06:33.680 for the sake of getting some small piece of evidence 0:06:33.720 --> 0:06:35.720 in and the hopes that that might be what pushes 0:06:35.800 --> 0:06:38.160 the jury over the edge to a conviction, as opposed 0:06:38.200 --> 0:06:42.640 to looking for that evidence through witness testimony, co defendite testimony, 0:06:42.960 --> 0:06:46.520 physical evidence, videotapes, whatever it is. And even though the 0:06:46.560 --> 0:06:49.120 evidence has been used in other case, appellate courts are 0:06:49.160 --> 0:06:52.320 known for shifting or revisiting issues. 0:06:52.560 --> 0:06:56.120 Later on in the opening statements, the defense attorney told 0:06:56.279 --> 0:06:59.599 you know his rags to riches story, and he sort 0:06:59.640 --> 0:07:02.800 of changed the narrative. He said, THUG stands for truly 0:07:02.920 --> 0:07:07.280 humbled under God, and why I sell the alleged gang 0:07:07.720 --> 0:07:10.240 doesn't stand for young slime life. It stands for the 0:07:10.320 --> 0:07:11.680 luxury clothing brand. 0:07:12.440 --> 0:07:14.880 Well, you know. And sometimes lawyers have to sort of 0:07:15.000 --> 0:07:16.880 dance with what brung them, if you will. If it's 0:07:17.120 --> 0:07:19.480 this case, the lawyer may have been looking for some 0:07:19.640 --> 0:07:22.160 way to make a distinction. I do think though, that 0:07:22.240 --> 0:07:24.480 the ragged the richest story is the type of thing 0:07:24.520 --> 0:07:26.360 that plays in what we talk about ambigoo, and that 0:07:26.520 --> 0:07:29.320 is the lyrics. And is this artist writing about what 0:07:29.400 --> 0:07:33.280 he saw as his life experience or an experience of 0:07:33.320 --> 0:07:36.040 his friends, or something that he believed might be relatable 0:07:36.400 --> 0:07:39.600 in his music genre to his audience, and it is 0:07:39.680 --> 0:07:42.800 just something there as opposed to some type of cryptic 0:07:42.960 --> 0:07:45.880 message about crimes that had taken place and that he 0:07:45.920 --> 0:07:47.640 had been a part of. And so those will to 0:07:47.640 --> 0:07:50.160 be things they have to ferret out a mindful those 0:07:50.320 --> 0:07:53.840 how a lawyer might change the narrative. I mean, remember 0:07:53.920 --> 0:07:56.200 that we've seen in famous cases. 0:07:55.960 --> 0:07:56.720 A narrative change. 0:07:56.760 --> 0:07:59.960 We've gone from a bloody crime scene photo to say, 0:08:00.000 --> 0:08:02.280 means of somebody trying to pull on a leather glove 0:08:02.320 --> 0:08:04.000 and an argument about it. If it doesn't fit, you 0:08:04.080 --> 0:08:06.720 must have quit, you know. And so the lawyer may 0:08:06.800 --> 0:08:09.400 try to change that narrative here in this case to 0:08:09.400 --> 0:08:12.480 get the jury's attention on this is who he was, 0:08:12.600 --> 0:08:14.640 This is how he's come up, This is why he 0:08:14.720 --> 0:08:17.520 writes these lyrics, This is why he has this circle 0:08:17.560 --> 0:08:20.760 of friends. This is him as a person, But he's 0:08:20.840 --> 0:08:23.360 now a place where he's so successful that this idea 0:08:23.360 --> 0:08:26.440 of sort of street crime at the level that's a legend. 0:08:26.480 --> 0:08:29.440 The indictment is outside of what he does, and that's 0:08:29.440 --> 0:08:31.760 why he may be talking about things like, you know, 0:08:32.200 --> 0:08:35.280 designer clues as opposed to the gang name and such 0:08:35.320 --> 0:08:35.520 as that. 0:08:36.120 --> 0:08:39.120 I can't let you go without talking about the other 0:08:39.200 --> 0:08:42.479 reco cause that Willis is bringing in the same courthouse. 0:08:42.720 --> 0:08:45.160 I mean, do you think that Trump's lawyers will be 0:08:45.280 --> 0:08:47.840 watching this? I mean the cases are so different. 0:08:48.120 --> 0:08:50.360 It's different in the nature of the charges, but it's 0:08:50.360 --> 0:08:53.640 not necessarily different in watching how prosecution things or a 0:08:53.720 --> 0:08:56.840 prosecution team might think. You know, this isn't a case 0:08:56.880 --> 0:08:58.880 where we're going to see the da rself, you know, 0:08:59.200 --> 0:09:01.080 making an appearance every day in the court room, just 0:09:01.120 --> 0:09:03.000 like we haven't seen in the Trump case. I mean, 0:09:03.080 --> 0:09:05.640 she's got assistance in there, some different sets of lawyers' 0:09:05.679 --> 0:09:08.320 handling different cases, but it can't give you a sense 0:09:08.360 --> 0:09:10.480 of how the case is managed for sort of what 0:09:10.600 --> 0:09:13.400 the rhythm and the flow of their charging decision and 0:09:13.440 --> 0:09:16.600 their evidence presentation can mean if they're watching. So I'm 0:09:16.640 --> 0:09:19.600 sure that the lawyers will have their own group doing 0:09:19.640 --> 0:09:22.280 some type of recon on this case. And while they 0:09:22.320 --> 0:09:24.760 won't be talking about things like murder or drug deliving 0:09:24.840 --> 0:09:27.880 all that, they may be looking for arguments that the 0:09:27.960 --> 0:09:31.679 state may make in response to objections that the defendance 0:09:31.720 --> 0:09:35.280 team will make about keeping certain evidence out of the recocase, 0:09:35.280 --> 0:09:38.000 and how the Rico Statute doesn't just give you carte 0:09:38.040 --> 0:09:41.520 blanche to bring anything you want to into evidence. So 0:09:41.920 --> 0:09:45.040 I do think that they have likely been studying the 0:09:45.080 --> 0:09:48.520 past Reco case, maybe looking at closing arguments, opening statements, 0:09:48.640 --> 0:09:51.040 how the jury was charged, things that came up like that, 0:09:51.080 --> 0:09:53.280 and they'll probably be wanting to do the same thing here. 0:09:53.320 --> 0:09:56.080 The cases are different, but they have the same risks, 0:09:56.200 --> 0:09:59.320 and the state again has the same risk there, that is, 0:09:59.440 --> 0:10:02.360 if they stretch too far, you know, if they try 0:10:02.400 --> 0:10:06.800 to cast too wide and met, they risk missing the 0:10:06.800 --> 0:10:08.800 big fish that they were after the start with. And 0:10:08.840 --> 0:10:11.640 so we may see that in this case, and ultimately 0:10:11.679 --> 0:10:13.560 that may be what happens in the Trump case. But 0:10:13.720 --> 0:10:15.719 I think likely that case is so far down the 0:10:15.800 --> 0:10:17.600 road that the lawyers have put in time to be 0:10:17.640 --> 0:10:19.719 watching this, and that case will be tied up in 0:10:19.760 --> 0:10:22.080 appellate course for some time. And we're not even sureing 0:10:22.120 --> 0:10:23.120 the schedule of that trial. 0:10:23.320 --> 0:10:25.960 Oh it's a pleasure, Thanks so much, Michael. That's Michael 0:10:26.040 --> 0:10:29.640 Moore of Moore Hall coming up a question of double jeopardy. 0:10:29.800 --> 0:10:31.520 I'm June Grosso and this is Bloomberg. 0:10:34.840 --> 0:10:39.600 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:10:43.160 --> 0:10:47.440 They're tough Louisiana, Liby, you shoot me, They'll give you 0:10:47.440 --> 0:10:48.079 the guest cheaper. 0:10:48.960 --> 0:10:51.720 No, they won't. It's called double jeopardy. 0:10:51.760 --> 0:10:54.160 I learned a few things in prison. Neck I could 0:10:54.200 --> 0:10:56.600 shoot you in the middle of Marty Grin, they can't touch. 0:10:56.400 --> 0:10:58.480 Me, and the next law professor, I can assure you 0:10:58.520 --> 0:10:59.080 she is right. 0:11:00.080 --> 0:11:03.520 Amendments double jeopardy clause. We all know about it from 0:11:03.559 --> 0:11:07.480 TV and the movies. So why did Georgia prosecutors want 0:11:07.520 --> 0:11:11.480 to try Damien mckelrath a second time after a jury 0:11:11.520 --> 0:11:14.520 had found him not guilty of the malice murder of 0:11:14.559 --> 0:11:18.760 his adoptive mother by reason of insanity. Well, there's a twist. 0:11:19.080 --> 0:11:23.160 The jury also found Michael Rath guilty, though mentally ill, 0:11:23.280 --> 0:11:27.360 of felony murder and aggravated assault, and the Georgia Supreme 0:11:27.400 --> 0:11:31.880 Court ruled that those inconsistent verdicts were illogical and threw 0:11:31.920 --> 0:11:35.640 them out. But a majority of Supreme Court justices across 0:11:35.679 --> 0:11:39.760 the ideological spectrum seem to agree that once a person 0:11:39.800 --> 0:11:43.040 has been acquitted of a charge, the matter is closed. 0:11:43.440 --> 0:11:45.600 Here's Justice Neil Gorsuch, and. 0:11:45.520 --> 0:11:50.000 We do not ever talk about whether they make sense 0:11:50.080 --> 0:11:53.880 to us. They may be products of compromise, they may 0:11:53.920 --> 0:11:58.600 be inconsistent with verdicts on other counts, we don't question them. 0:11:58.760 --> 0:12:01.920 And this is a first time this issue has arisen here. 0:12:02.000 --> 0:12:02.840 Shouldn't that tell us? 0:12:02.840 --> 0:12:06.439 Something joining me is former federal prosecutor George Newhouse of 0:12:06.559 --> 0:12:10.480 Richard's Carrington. George tell us about these inconsistent verdicts. 0:12:10.760 --> 0:12:14.400 So the basic facts are a delusional defendant believed that 0:12:14.480 --> 0:12:17.000 his mother was trying to poison him and as a 0:12:17.040 --> 0:12:19.760 result stabbed her to death, called nine to eleven fold 0:12:19.840 --> 0:12:22.600 the dispatcher what he'd done and why he was right 0:12:22.640 --> 0:12:25.600 to have done it. He went to trial on three counts, 0:12:25.640 --> 0:12:27.199 by the way, and that's where this comes up to 0:12:27.240 --> 0:12:30.640 the three separate charges. The first one under Georgia law 0:12:30.720 --> 0:12:33.280 is called malice of murder, which is equivalent to a 0:12:33.320 --> 0:12:36.160 first degree murdered, always the most serious charge, the one 0:12:36.200 --> 0:12:39.240 that typically can carry in capital punishment. And then there 0:12:39.240 --> 0:12:42.600 were two other counts, a felony murder rule, which means 0:12:42.600 --> 0:12:45.760 that he killed someone in connection with committing a felony, 0:12:45.800 --> 0:12:48.480 in this case, an aggravated assault. And so the third 0:12:48.559 --> 0:12:51.240 charge was aggravated assault. And you might ask, why do 0:12:51.360 --> 0:12:55.520 prosecutors bring three separate charges when one act occurred? A killing, 0:12:55.640 --> 0:12:58.440 and they do that because sometimes they want to present 0:12:58.480 --> 0:13:01.320 the jury with the option of evicting on a lesser 0:13:01.559 --> 0:13:03.960 offense if they think they might have a problem with 0:13:04.040 --> 0:13:06.600 the principal offense. And that's exactly what happened here. The 0:13:06.679 --> 0:13:10.719 jury deliberated and the defense was he was insane, so 0:13:10.760 --> 0:13:13.520 he lacked the criminal intent to commit murder, and the 0:13:13.559 --> 0:13:16.560 jury deliberated and found him not guilty by reason of 0:13:16.600 --> 0:13:19.680 insanity on the first count, saying he was crazy, But 0:13:19.800 --> 0:13:22.640 on counts two and three, the felony murder and the 0:13:22.679 --> 0:13:25.640 aggregated assault, the jury found that he was sane and 0:13:25.720 --> 0:13:28.839 convicted him. The State of Georgia, unhappy with that, went 0:13:28.880 --> 0:13:31.120 to the court and said, wow, we need a new 0:13:31.160 --> 0:13:35.200 trial because these verdicts are logically inconsistent. You can't be 0:13:35.320 --> 0:13:38.480 crazy on one count, the worst count, but saints on 0:13:38.559 --> 0:13:40.280 the other counts, And that went all the way to 0:13:40.360 --> 0:13:43.160 the Georgia Supreme Court, which agreed. The court said the 0:13:43.240 --> 0:13:46.600 verdicts on these two different counts are logically repugnant, and 0:13:46.640 --> 0:13:50.280 as a result it vacated the not guilty verdict and 0:13:50.520 --> 0:13:52.679 told the state that they are free to retry him. 0:13:52.760 --> 0:13:54.800 And that's what went up to the Supreme Court whether 0:13:54.840 --> 0:13:58.080 there should be an exception to the double jeopardy clause, 0:13:58.160 --> 0:14:02.520 and the exception would allow if the verdicts were logically inconsistent, 0:14:02.720 --> 0:14:05.960 which jury verdicts are, by the way, frequently, they'd be 0:14:05.960 --> 0:14:06.720 allowed to retry. 0:14:06.760 --> 0:14:11.400 In this and Justice course, it seemed particularly fervent about 0:14:11.880 --> 0:14:14.319 respecting the jury's verdict of acquittal. 0:14:14.679 --> 0:14:16.839 The rule in this country for the last two hundred 0:14:16.840 --> 0:14:20.160 and thirty years, Justice Corsage pointed out, is you only 0:14:20.200 --> 0:14:22.840 get one chance, and if that jury verdict comes back 0:14:23.200 --> 0:14:26.800 not guilty, there it can be no retrial. We don't 0:14:27.120 --> 0:14:31.640 the court system does not second guests acquittals. So for example, 0:14:32.160 --> 0:14:35.880 if the acquittal is based upon what's called jury nullification, 0:14:36.000 --> 0:14:39.600 they simply ignore the evidence. Where that verdict is illogically 0:14:39.640 --> 0:14:42.920 inconsistent between two different counts, the court system is not 0:14:43.000 --> 0:14:46.280 allowed to second guess. Then what usually happens, probably happened 0:14:46.280 --> 0:14:49.920 in this case was the inconsistent verdicts were product of compromise. 0:14:50.440 --> 0:14:53.640 Justice Corsage addressed that they may be products of compromise. 0:14:53.720 --> 0:14:57.440 They may be inconsistent with other verdicts. We Justice Courses said, 0:14:57.520 --> 0:15:00.520 the court system does not question those verdicts, and that 0:15:00.560 --> 0:15:03.240 has been the longest country for two hundred and thirty years. 0:15:03.400 --> 0:15:05.920 Inconsistent verdicts happen all the time. I tried one of 0:15:06.000 --> 0:15:09.600 the prosecutor and the judge said, well, we have two verdicts. 0:15:09.720 --> 0:15:12.720 One is inconsistent with the other and the case is finished, 0:15:12.840 --> 0:15:14.160 so double jeopardy apply. 0:15:14.680 --> 0:15:19.240 Thanks George. That's George Newhouse of Richard's Carrington. The case 0:15:19.280 --> 0:15:22.040 before the Supreme Court is about a challenge to the 0:15:22.120 --> 0:15:25.520 power of the Securities and Exchange Commission to bring legal 0:15:25.560 --> 0:15:29.160 actions in house, and it's another example of the conservative 0:15:29.440 --> 0:15:33.920 justices target on the administrative state. During oral arguments, Chief 0:15:34.080 --> 0:15:38.240 Justice John Roberts expressed his concerns about the growing power 0:15:38.280 --> 0:15:39.600 of federal regulators. 0:15:40.240 --> 0:15:46.080 The extent of impact of government agencies on daily life 0:15:46.120 --> 0:15:51.840 today is enormously more significant than it was fifty years ago. 0:15:52.600 --> 0:15:55.840 The Jocracy case could strip the SEC of a key 0:15:56.000 --> 0:16:01.360 enforcement tool, and conservative justices like Brett Kavanaugh suggested that 0:16:01.480 --> 0:16:05.440 people accused of fraud by the agency have a constitutional 0:16:05.520 --> 0:16:08.360 right to have their cases decided by a jury in 0:16:08.480 --> 0:16:12.920 federal court instead of by the SEC's in house administrative 0:16:13.000 --> 0:16:13.680 law judges. 0:16:14.120 --> 0:16:19.280 That seems problematic to say the government can deprive you 0:16:19.360 --> 0:16:24.360 of your property, your money, substantial sums in a tribunal 0:16:25.240 --> 0:16:29.440 that is at least perceived as not being impartial. 0:16:29.720 --> 0:16:32.280 A change in the law by the court here could 0:16:32.280 --> 0:16:37.000 have effects far beyond the sec because roughly two dozen agencies, 0:16:37.160 --> 0:16:42.000 including the EPA, the FTC, and the CFTC have similar 0:16:42.120 --> 0:16:46.840 enforcement schemes. As Liberal Justice Sonya Sotomayor pointed out to 0:16:46.960 --> 0:16:49.720 Jarcasy's lawyer Michael McCulloch. 0:16:49.760 --> 0:16:53.000 All of those agencies. 0:16:55.360 --> 0:16:56.400 We'll have to go to court. 0:16:56.440 --> 0:17:02.560 Correct, well, you are, all of their proceedings are now nullified, 0:17:02.600 --> 0:17:03.360 onto your theory. 0:17:03.560 --> 0:17:07.360 And Liberal Justice Elena Kagan said that in nineteen seventy 0:17:07.400 --> 0:17:11.479 seven Supreme Court ruling Atlas Roofing established there was no 0:17:11.600 --> 0:17:14.520 right to a jury trial here settling the issue in 0:17:14.560 --> 0:17:16.480 the case that's settled. 0:17:16.880 --> 0:17:19.640 Well, it's settled only to the extent no one's brought 0:17:19.640 --> 0:17:23.119 it up and forced this issue since Atlas Roofing, in 0:17:23.320 --> 0:17:25.080 his Carea's contact. 0:17:24.960 --> 0:17:31.359 Nobody has had the you know, kutzpa to quote my 0:17:31.400 --> 0:17:34.760 people to bring it up since Atlas Roofing. 0:17:35.600 --> 0:17:38.160 My guest is Harold Krent, a professor at the Chicago 0:17:38.280 --> 0:17:42.200 Kent College of Law. How this case involves George Jarcasey, 0:17:42.320 --> 0:17:46.520 a former hedge fund manager and conservative radio host, and 0:17:46.600 --> 0:17:50.800 the SEC found he had committed securities fraud in twenty 0:17:50.880 --> 0:17:54.920 thirteen for misleading investors. How high are the stakes here? 0:17:55.440 --> 0:17:59.119 The consequence of dramatic and briefer they are that almost 0:17:59.200 --> 0:18:03.560 every particular individual or firm erformed agency, many at least, 0:18:03.560 --> 0:18:05.479 would have the right to a jury trial and not 0:18:05.560 --> 0:18:07.920 have to go before Administrate of tributal as it is 0:18:08.000 --> 0:18:11.080 currently the case. That would be one fundamental change. Second 0:18:11.160 --> 0:18:13.720 would be that all the Ministry of Law judges would 0:18:13.760 --> 0:18:17.080 have to be subject to Outgill removal, which would undermine 0:18:17.119 --> 0:18:22.560 the independence, ironically of these administrative determinations. And third, there 0:18:22.560 --> 0:18:26.760 would be some kind reinvigoration of the non delegation doctrine, 0:18:26.760 --> 0:18:31.200 which was limited Congress's ability to delegate issues for the 0:18:31.280 --> 0:18:35.639 Ministry of Agencies to resolve. So very consequential case, the 0:18:35.760 --> 0:18:37.480 stakes couldn't be higher now. 0:18:37.560 --> 0:18:42.280 Jocasy contends that defendants in SEC cases have a constitutional 0:18:42.359 --> 0:18:45.080 right to make their case to a federal jury, and 0:18:45.119 --> 0:18:50.159 the oral arguments focused almost entirely on that one issue 0:18:50.160 --> 0:18:53.679 on the Seventh Amendment, which provides that in suits at 0:18:53.760 --> 0:18:57.119 common law, the right of trial by jury shall be preserved. 0:18:57.600 --> 0:19:00.640 So tell us about the argument over the sete Amendment. 0:19:01.119 --> 0:19:04.960 The question is how broad the Seventh Amendment should be 0:19:05.320 --> 0:19:09.640 construed to extend. On the one hand, an individual has 0:19:09.680 --> 0:19:12.760 a right to a jury trial, but the courts for 0:19:12.760 --> 0:19:15.879 one hundred and fifty years, if not more, have said 0:19:15.960 --> 0:19:19.000 that the jury trial right does not exist if there 0:19:19.080 --> 0:19:21.879 is a public right involved, And so much of the 0:19:22.080 --> 0:19:26.160 argument discussed from different perspectives. What is a public right? 0:19:26.359 --> 0:19:28.520 And the Supreme Court held fifty years ago in a 0:19:28.600 --> 0:19:32.120 case called Atlas Roofing that a public right would include 0:19:32.119 --> 0:19:35.520 not only issues between individuals and the government directly, such 0:19:35.560 --> 0:19:39.920 as taxes and claims like social Security benefits, but also 0:19:39.960 --> 0:19:45.280 would include anything under a comprehensive congressional scheme that was 0:19:45.359 --> 0:19:48.720 devised in order to protect the public. And therefore, in 0:19:48.800 --> 0:19:51.680 light of this unique public nature, there is no right 0:19:51.720 --> 0:19:54.080 to a jury trial, and that therefore the government can 0:19:54.240 --> 0:19:58.720 recover fines even outside of a jury context. So this 0:19:58.800 --> 0:20:02.760 is the precedent that the government relied upon, and it 0:20:02.840 --> 0:20:06.520 has been cited in lots of cases since involving finding 0:20:06.560 --> 0:20:10.920 immigration proceedings, in customs proceedings and so forth. So the 0:20:10.960 --> 0:20:14.480 stakes are very high in this case, Justice. 0:20:14.240 --> 0:20:18.480 Is Elena Kagan and Katanji Brown. Jackson said that the 0:20:18.600 --> 0:20:23.000 Atlas ruling settled the issue here, So would the Court 0:20:23.080 --> 0:20:28.000 have to overrule that nineteen seventy seven president in order 0:20:28.080 --> 0:20:29.760 to rule for jocacy here? 0:20:30.480 --> 0:20:33.440 Likely they would do so, at least in substance, if 0:20:33.480 --> 0:20:36.800 not inform. I mean, Chief Justice Roberts himself said, well, 0:20:37.119 --> 0:20:39.719 Atlas was fifty years ago, and we've seen a lot 0:20:39.800 --> 0:20:42.320 of that's happened in the last fifty years, including the 0:20:42.440 --> 0:20:45.880 increasing power of administrative agencies. So it's time for us 0:20:45.920 --> 0:20:48.280 to take a good look back at it to see 0:20:48.320 --> 0:20:51.000 if it makes sense today. And to be fair, some 0:20:51.080 --> 0:20:55.080 of the more conservative justices, particularly Justice Barrett, was strogving 0:20:55.119 --> 0:20:58.160 to figure out a limiting principle, how you could make 0:20:58.200 --> 0:21:02.000 the determination of when the Seventh Amendment right would be triggered. 0:21:02.200 --> 0:21:03.439 How do you think they're going to rule? Is it 0:21:03.480 --> 0:21:05.480 going to be a six ' to three ruling? Whatever 0:21:05.520 --> 0:21:05.920 it is. 0:21:06.480 --> 0:21:09.439 Again, it's so difficult to judge from an our largument 0:21:09.480 --> 0:21:11.800 how of course finally going to come out. But I 0:21:11.840 --> 0:21:15.879 would guess that they will try to articulate a fuzzy line, 0:21:16.240 --> 0:21:20.920 but a line that is more restrictive of Congress's ability 0:21:20.960 --> 0:21:25.400 really to determine what kind of suits can be presented 0:21:25.440 --> 0:21:28.160 before administered eivation suites. I doubt they will go as 0:21:28.320 --> 0:21:32.159 far as to say that Congress can't allow subsuits to 0:21:32.240 --> 0:21:35.680