1 00:00:03,200 --> 00:00:08,320 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio. 2 00:00:10,520 --> 00:00:12,360 Speaker 2: I was scared for myself, but I looked around. I 3 00:00:12,360 --> 00:00:15,600 Speaker 2: saw women and children. He was yelling in their faces, saying, 4 00:00:16,480 --> 00:00:18,759 Speaker 2: saying these threats. I couldn't just sit still. 5 00:00:18,920 --> 00:00:23,080 Speaker 3: Troll began this week for Daniel Penny, the Marine Corps 6 00:00:23,200 --> 00:00:27,040 Speaker 3: veteran charged with recklessly causing the death of a homeless 7 00:00:27,080 --> 00:00:30,479 Speaker 3: man by placing him in a deadly choke hold on 8 00:00:30,560 --> 00:00:33,880 Speaker 3: a New York City subway train last year. The death 9 00:00:33,920 --> 00:00:38,440 Speaker 3: of Jordan Neely ignited a firestorm of protests, debate, and 10 00:00:38,520 --> 00:00:42,680 Speaker 3: division across the city and headlines across the country. Was 11 00:00:42,760 --> 00:00:46,879 Speaker 3: Penny a good samaritan or a vigilante. Penny says he 12 00:00:47,000 --> 00:00:50,839 Speaker 3: was trying to protect himself and the other passengers because 13 00:00:50,960 --> 00:00:52,800 Speaker 3: Neely was threatening them. 14 00:00:53,120 --> 00:00:55,160 Speaker 2: The three main threats that he repeated over and over 15 00:00:55,360 --> 00:00:58,000 Speaker 2: was I'm going to kill you, I'm prepared to go 16 00:00:58,000 --> 00:01:00,160 Speaker 2: to jail for life, and I'm willing to die. 17 00:01:00,440 --> 00:01:04,160 Speaker 3: Jury selection in the case started on Monday. Joining me 18 00:01:04,240 --> 00:01:08,760 Speaker 3: is criminal defense attorney Jeremy Salande, a former Manhattan prosecutor. 19 00:01:09,080 --> 00:01:13,479 Speaker 3: How much of this debate about homelessness and mental illness 20 00:01:13,560 --> 00:01:16,200 Speaker 3: and safety on the subway. How much will that bleed 21 00:01:16,240 --> 00:01:17,040 Speaker 3: into the trial. 22 00:01:17,319 --> 00:01:19,640 Speaker 1: These are issues that are biggest hit home for many 23 00:01:19,680 --> 00:01:22,399 Speaker 1: New Yorkers. But what happens outside the courtroom should remain 24 00:01:22,440 --> 00:01:25,200 Speaker 1: outside the court. What happens inside the courtroom should be 25 00:01:25,280 --> 00:01:27,880 Speaker 1: regulated by the four corners of the law. I would 26 00:01:27,920 --> 00:01:31,360 Speaker 1: not expect that any of it should come into the trial. 27 00:01:31,560 --> 00:01:34,559 Speaker 1: The question is not what Jordan really did or didn't 28 00:01:34,640 --> 00:01:37,800 Speaker 1: do Page weeks once and years before criminal record of 29 00:01:37,920 --> 00:01:40,920 Speaker 1: the health builders being homeless in that moment, in that 30 00:01:40,920 --> 00:01:45,720 Speaker 1: moment in time, was then Teddy justified and taking action 31 00:01:46,080 --> 00:01:49,480 Speaker 1: to subdue Jordan Neili and then ultimately cause his death 32 00:01:49,480 --> 00:01:51,360 Speaker 1: way recklessly and manage it me as the legs by 33 00:01:51,400 --> 00:01:52,760 Speaker 1: the prosecutors. 34 00:01:52,600 --> 00:01:57,760 Speaker 3: Nearly reportedly had mental health and drug addiction issues. You 35 00:01:57,800 --> 00:02:01,440 Speaker 3: don't think that his psychiatric his history, and the fact 36 00:02:01,480 --> 00:02:06,200 Speaker 3: that synthetic cannabinoids known as K two were found in 37 00:02:06,320 --> 00:02:09,200 Speaker 3: his system, you don't think that that will come in. 38 00:02:09,760 --> 00:02:12,680 Speaker 1: First of all, Max Wiley and Judge Wiley's has been 39 00:02:12,680 --> 00:02:15,120 Speaker 1: around the block in terms of the criminal and criminal 40 00:02:15,240 --> 00:02:18,000 Speaker 1: justice for years. He was actually my deputy chief when 41 00:02:18,000 --> 00:02:19,960 Speaker 1: I was a prosecutor, and it's been on the bench 42 00:02:20,000 --> 00:02:22,320 Speaker 1: a long time. I trust it he'll make the right call, 43 00:02:22,440 --> 00:02:24,560 Speaker 1: and in this particular case, I think you have to 44 00:02:24,600 --> 00:02:29,040 Speaker 1: setify the noise and again not looking at his criminal history, 45 00:02:29,040 --> 00:02:31,680 Speaker 1: at his meaning Jordan Aally, not looking at his mental 46 00:02:31,720 --> 00:02:33,720 Speaker 1: health issues. Was it relevant in that moment to the 47 00:02:33,800 --> 00:02:37,560 Speaker 1: determination and the reasonable person analysis, if you will, of 48 00:02:38,080 --> 00:02:41,240 Speaker 1: Daniel Penny when he observed this man throwing down his 49 00:02:41,360 --> 00:02:43,880 Speaker 1: jacket saying something along the lines of I don't care 50 00:02:43,880 --> 00:02:45,840 Speaker 1: if I go to jail or whatever he might have said, 51 00:02:46,160 --> 00:02:48,920 Speaker 1: and the reaction of people. So you have to limit 52 00:02:48,960 --> 00:02:52,400 Speaker 1: it because you can't twist the jury and provide evidence 53 00:02:52,400 --> 00:02:55,560 Speaker 1: that is not relevant in to the determination and decision making. 54 00:02:55,800 --> 00:02:59,080 Speaker 1: Daniel Penny didn't know about the prior history. Daniel Penny 55 00:02:59,080 --> 00:03:01,840 Speaker 1: didn't know about the mental helmets, the K two cause 56 00:03:02,120 --> 00:03:04,320 Speaker 1: and nearly they're acting a certain way. Maybe that could 57 00:03:04,320 --> 00:03:07,079 Speaker 1: be relevant, But what did people see? What does the 58 00:03:07,160 --> 00:03:09,600 Speaker 1: video show and demonstrate, and what happened in that moment 59 00:03:09,880 --> 00:03:12,880 Speaker 1: is really important factor, not days, weeks and months before. 60 00:03:13,600 --> 00:03:17,600 Speaker 3: There's a four minute video of Penny pinning nearly to 61 00:03:17,680 --> 00:03:21,440 Speaker 3: the ground and placing him in a choke hold while 62 00:03:21,480 --> 00:03:25,800 Speaker 3: two other passengers helped to restrain neely, and both sides 63 00:03:25,800 --> 00:03:27,720 Speaker 3: say they're going to use that, how will they use 64 00:03:27,760 --> 00:03:28,399 Speaker 3: it differently? 65 00:03:28,960 --> 00:03:31,400 Speaker 1: Well, you know, I think that the defense's term to 66 00:03:31,440 --> 00:03:34,120 Speaker 1: try to show that what Penny did was very reasonable 67 00:03:34,120 --> 00:03:36,960 Speaker 1: in that moment and he's holding and pinning this individual 68 00:03:37,000 --> 00:03:39,520 Speaker 1: to the ground, and you know there's other people who 69 00:03:39,520 --> 00:03:42,640 Speaker 1: are helping him do something because they're equally concerned about 70 00:03:42,680 --> 00:03:45,960 Speaker 1: the volatility of the immediate presence bones or that not 71 00:03:46,080 --> 00:03:49,200 Speaker 1: threat on lives of people on the subway. Whereas the 72 00:03:49,280 --> 00:03:51,920 Speaker 1: prosecution is going to show a guy who was subdued 73 00:03:52,280 --> 00:03:54,360 Speaker 1: and there's a hold around the neck and the true 74 00:03:54,440 --> 00:03:58,080 Speaker 1: hold and probably concentrate more on that, which, ultimately, if 75 00:03:58,080 --> 00:03:59,640 Speaker 1: you believe in their theory, and they proved me on 76 00:03:59,720 --> 00:04:02,720 Speaker 1: a reading him about paused him to lose consciousness and 77 00:04:02,800 --> 00:04:06,640 Speaker 1: ultimately pass, setting aside whether or not law enforcement did 78 00:04:06,720 --> 00:04:10,360 Speaker 1: CPR and should have done CPR. So it's the same video, obviously, 79 00:04:10,680 --> 00:04:12,480 Speaker 1: But what is going to try to demonstrate it was 80 00:04:12,480 --> 00:04:14,160 Speaker 1: reasonable in the moment. The other words, we're going to 81 00:04:14,160 --> 00:04:17,279 Speaker 1: try to demonstrate it was naveraging, reckless, and beyond the panel, 82 00:04:17,279 --> 00:04:17,680 Speaker 1: if you will. 83 00:04:18,320 --> 00:04:22,960 Speaker 3: The Medical Examiner's Office found that he died from compression 84 00:04:23,000 --> 00:04:25,200 Speaker 3: to his neck as a result of the choke hold, 85 00:04:25,720 --> 00:04:28,520 Speaker 3: and the manner was homicide. The defense said it's going 86 00:04:28,600 --> 00:04:32,880 Speaker 3: to attack the emmy's report and bring up potential other 87 00:04:33,000 --> 00:04:37,000 Speaker 3: causes of Neelie's death, including high levels of that K 88 00:04:37,040 --> 00:04:40,320 Speaker 3: two in his blood stream that usually works in movies. 89 00:04:40,320 --> 00:04:41,560 Speaker 3: Does it work in the courtroom. 90 00:04:41,880 --> 00:04:44,160 Speaker 1: It can work in the courtroom. And this is sort 91 00:04:44,200 --> 00:04:46,800 Speaker 1: of a response to what we asked me earlier. I 92 00:04:46,839 --> 00:04:49,600 Speaker 1: don't necessarily believe the cakes was relevant to the reaction 93 00:04:50,040 --> 00:04:53,680 Speaker 1: and behavior of a penny, but it can absolutely be relevant. 94 00:04:54,240 --> 00:04:56,479 Speaker 1: And I assume we'll have a forensic and expert for 95 00:04:56,560 --> 00:04:59,120 Speaker 1: lack of better term, to try to establish this that 96 00:04:59,160 --> 00:05:02,440 Speaker 1: the K two may have been that proximate natural cause 97 00:05:02,520 --> 00:05:05,520 Speaker 1: or death to join a kneeling. So I think that's 98 00:05:05,560 --> 00:05:07,080 Speaker 1: going to be something that they're going to argue, and 99 00:05:07,160 --> 00:05:09,320 Speaker 1: it should be something it sounds like it is. Does 100 00:05:09,360 --> 00:05:11,880 Speaker 1: it work in real life as opposed to movies. Every 101 00:05:11,880 --> 00:05:14,640 Speaker 1: case is unique, and every case is different. I believe 102 00:05:14,680 --> 00:05:17,440 Speaker 1: that big concern here is you have to make sure 103 00:05:17,480 --> 00:05:21,280 Speaker 1: that you separate those jurors the preconceived notion, whether it's race, 104 00:05:21,320 --> 00:05:24,080 Speaker 1: whether it's politics, whether it's some way safety take them 105 00:05:24,080 --> 00:05:28,360 Speaker 1: out of the equation so that that jury objectively analyzes 106 00:05:28,400 --> 00:05:31,840 Speaker 1: the evidence that's presented in that courtroom. So it does work, 107 00:05:31,880 --> 00:05:34,680 Speaker 1: It absolutely can work. It's not an easy task or 108 00:05:34,680 --> 00:05:37,480 Speaker 1: an easy lift, especially with such a charged case. From 109 00:05:37,520 --> 00:05:39,080 Speaker 1: the emotional perspective. 110 00:05:39,440 --> 00:05:42,200 Speaker 3: Both sides are going to call witnesses who are on 111 00:05:42,240 --> 00:05:46,080 Speaker 3: the train, and it appears that their level of concern 112 00:05:46,200 --> 00:05:51,279 Speaker 3: about Neely's behavior varied. Some said they were afraid, others 113 00:05:51,360 --> 00:05:54,160 Speaker 3: said no, they see this all the time on the subway. 114 00:05:54,640 --> 00:05:56,880 Speaker 3: Will their accounts sort of cancel each other out? 115 00:05:57,600 --> 00:05:59,920 Speaker 1: The testimony and the witnesses are not going to cancel 116 00:06:00,040 --> 00:06:02,760 Speaker 1: shovel out to lack of a better way to describe it, 117 00:06:02,920 --> 00:06:04,799 Speaker 1: The words that they use are going to be critically 118 00:06:04,800 --> 00:06:07,720 Speaker 1: important because that video owning shows section in time and 119 00:06:07,800 --> 00:06:11,720 Speaker 1: doesn't show that imminent threat because remembered by law, there 120 00:06:11,760 --> 00:06:14,000 Speaker 1: needs to be that imminent threat of that serious physical 121 00:06:14,000 --> 00:06:17,680 Speaker 1: injury or death even to allow for the justification defense 122 00:06:17,760 --> 00:06:20,760 Speaker 1: or self defense if you will yourself or other people. 123 00:06:20,880 --> 00:06:24,719 Speaker 1: So beyond that video, how do these people perceive those moments? 124 00:06:24,800 --> 00:06:27,880 Speaker 1: How do they react? And I'd be very concerned, as 125 00:06:28,000 --> 00:06:31,600 Speaker 1: Daniel Penny's counsel and Daniel penny personally, if witnesses are 126 00:06:31,600 --> 00:06:33,719 Speaker 1: going to call up and say, you know what, you 127 00:06:33,760 --> 00:06:35,320 Speaker 1: see this all the time, you put your head down. 128 00:06:35,360 --> 00:06:37,120 Speaker 1: I'm a New Yorker, I've been around the block, I'm 129 00:06:37,200 --> 00:06:39,800 Speaker 1: ridden these subways. Later at night, you just ignore that 130 00:06:39,839 --> 00:06:43,440 Speaker 1: moment and the threat if he will goes away, because remember, too, 131 00:06:43,480 --> 00:06:46,240 Speaker 1: it's not about just being scared or nervous or anxious. 132 00:06:46,360 --> 00:06:49,120 Speaker 1: It's not a candae or textansponder of riding the New 133 00:06:49,200 --> 00:06:53,000 Speaker 1: York subway. It's photography or a realual New York standard 134 00:06:53,080 --> 00:06:55,560 Speaker 1: or just a reasonable standard versus standard, and what was 135 00:06:55,600 --> 00:06:58,640 Speaker 1: deserved in the moment. So you have to be careful. 136 00:06:58,680 --> 00:07:00,839 Speaker 1: I don't think they're going to negate each other the 137 00:07:00,920 --> 00:07:04,160 Speaker 1: words and the specificity why and how they believe that 138 00:07:04,200 --> 00:07:08,360 Speaker 1: they were physical or serious physical danger in a death. 139 00:07:08,720 --> 00:07:11,880 Speaker 1: That's so important, so important, not just that I'm scared. 140 00:07:12,200 --> 00:07:14,840 Speaker 3: What about the fact that he was a trained marine? 141 00:07:15,400 --> 00:07:17,160 Speaker 3: Does that come in very well? 142 00:07:17,240 --> 00:07:20,520 Speaker 1: Can come in if there is evidence that he knew 143 00:07:20,520 --> 00:07:23,440 Speaker 1: and was aware of this type of choke hold and 144 00:07:23,520 --> 00:07:26,760 Speaker 1: how to apply it and use it, and the potential 145 00:07:27,160 --> 00:07:30,720 Speaker 1: consequences of it. Because because remember, you know, it's not 146 00:07:30,960 --> 00:07:34,120 Speaker 1: an intentional client but did he know of these risks 147 00:07:34,280 --> 00:07:37,720 Speaker 1: from Jordan Eely? And then he just really ignored those risks. 148 00:07:37,880 --> 00:07:40,840 Speaker 1: Was there a substantial likelihood or risk that his actions 149 00:07:40,840 --> 00:07:43,000 Speaker 1: were going to cause another person's death and he ignored it. 150 00:07:43,320 --> 00:07:47,080 Speaker 1: It really just disregarded this person's well being in Jordan Eely. 151 00:07:47,560 --> 00:07:49,720 Speaker 1: And if Danny Penny was aware and knew and had 152 00:07:49,720 --> 00:07:51,760 Speaker 1: that skill set, I believe that it should come in. 153 00:07:51,800 --> 00:07:55,080 Speaker 3: It should revel go over what does a prosecution need 154 00:07:55,120 --> 00:07:57,200 Speaker 3: to prove to get a manslaughter conviction? 155 00:07:57,760 --> 00:08:01,360 Speaker 1: So man'slaughter is a little bit different and criminally negligent 156 00:08:01,440 --> 00:08:03,880 Speaker 1: on side, just think it's different from an intentional crime 157 00:08:04,360 --> 00:08:07,280 Speaker 1: when you're trying advanced daughter the second degree, when the 158 00:08:07,320 --> 00:08:10,720 Speaker 1: prosecution has to imagines that you recklessly cause the death 159 00:08:10,800 --> 00:08:15,280 Speaker 1: to another person. Reckless is that standard, whereas criminally negligent, 160 00:08:15,480 --> 00:08:18,000 Speaker 1: which is different, and that's the lower felony, that's the 161 00:08:18,080 --> 00:08:22,320 Speaker 1: class ethelony that when you do so you commit these acts, 162 00:08:22,600 --> 00:08:25,200 Speaker 1: you failed to sort of perceive that there was this 163 00:08:25,560 --> 00:08:29,320 Speaker 1: real substantial risk that your actions would tell us out 164 00:08:29,320 --> 00:08:32,679 Speaker 1: of the person's death. So the recklessness is different and 165 00:08:32,720 --> 00:08:35,920 Speaker 1: it's more severe than the lesser, if you will, of 166 00:08:35,960 --> 00:08:36,880 Speaker 1: criminal negligence. 167 00:08:37,360 --> 00:08:41,839 Speaker 3: So The question looming over the trial, like every trial basically, 168 00:08:42,200 --> 00:08:45,880 Speaker 3: is whether he's going to testify himself, And one of 169 00:08:45,960 --> 00:08:49,120 Speaker 3: his lawyers said he'd be a great witness. We anticipate 170 00:08:49,160 --> 00:08:51,600 Speaker 3: that he will, but that will depend on how the 171 00:08:51,640 --> 00:08:55,480 Speaker 3: trial goes. Do you think he almost needs to testify 172 00:08:56,240 --> 00:08:58,480 Speaker 3: to show his state of mind at the time. 173 00:08:59,120 --> 00:09:02,000 Speaker 1: Defense attorney such as myself, we don't always show our 174 00:09:02,040 --> 00:09:04,439 Speaker 1: cards like the prosecution does at this point in the 175 00:09:04,480 --> 00:09:09,280 Speaker 1: trial process. A lot of this hinges on that witness testimony. Yes, 176 00:09:09,360 --> 00:09:11,360 Speaker 1: that video was important, but I think that video can 177 00:09:11,400 --> 00:09:14,720 Speaker 1: work against Daniel Penny too, because you know, if someone 178 00:09:14,800 --> 00:09:17,560 Speaker 1: is quote unquote squirming, as was used in the terminology 179 00:09:17,600 --> 00:09:20,480 Speaker 1: by Daniel Penny, and that's not a favorable term, and 180 00:09:20,520 --> 00:09:23,160 Speaker 1: for all those minutes to hold that person there, what 181 00:09:23,240 --> 00:09:25,480 Speaker 1: are these witnesses going to say? Are they going to 182 00:09:25,600 --> 00:09:28,480 Speaker 1: articulate how and why they would feel for for their 183 00:09:28,520 --> 00:09:31,480 Speaker 1: life or their physical safety? Because if they don't, then 184 00:09:31,559 --> 00:09:35,280 Speaker 1: Daniel Penny has to testify. If they do and it's 185 00:09:35,320 --> 00:09:39,000 Speaker 1: clear of this imminent threat danger, then maybe Daniel Penny doesn't, 186 00:09:39,200 --> 00:09:41,600 Speaker 1: but I would expect him too. I would suspect he 187 00:09:41,640 --> 00:09:44,680 Speaker 1: will testify because he probably will come across as a 188 00:09:44,720 --> 00:09:48,720 Speaker 1: sympathetic person, not trying to attention the hurt another man 189 00:09:49,000 --> 00:09:51,120 Speaker 1: to do what he thought was the right thing in 190 00:09:51,160 --> 00:09:54,199 Speaker 1: that moment. True or not, that's the jury to decide, 191 00:09:54,280 --> 00:09:56,240 Speaker 1: but I would expect that he would testify. 192 00:09:57,040 --> 00:10:00,800 Speaker 3: You mentioned that Penny said that Neely was scored, and 193 00:10:00,840 --> 00:10:04,920 Speaker 3: the judge has rule that the prosecution can introduce that 194 00:10:05,120 --> 00:10:10,480 Speaker 3: video of him describing Neely as squirming to police and 195 00:10:10,600 --> 00:10:13,520 Speaker 3: other things he said to police when he was being questioned. 196 00:10:14,679 --> 00:10:17,880 Speaker 1: The choice of words that Daniel Penny chose in the 197 00:10:17,960 --> 00:10:21,559 Speaker 1: moment are probably words in retrospect he should not have. 198 00:10:22,320 --> 00:10:24,920 Speaker 1: You're not necessarily thinking of the right words to use, 199 00:10:25,160 --> 00:10:27,960 Speaker 1: especially if you're not technically in custody at the time 200 00:10:28,000 --> 00:10:31,280 Speaker 1: and there's just an investigation. But to our certain that 201 00:10:31,679 --> 00:10:36,199 Speaker 1: Jordan Neely was was squirming is not necessarily the right 202 00:10:36,360 --> 00:10:39,520 Speaker 1: language when I think of someone being a violent threat 203 00:10:39,559 --> 00:10:42,880 Speaker 1: to my life and safety or that in others, swirming 204 00:10:43,040 --> 00:10:46,839 Speaker 1: is more squirming to get away from someone, squirming to 205 00:10:47,280 --> 00:10:52,440 Speaker 1: slip away and protect oneself. Not he was flailing his arms, 206 00:10:52,440 --> 00:10:55,120 Speaker 1: who was taking swings, who was cursing me out, he 207 00:10:55,280 --> 00:11:01,600 Speaker 1: was threatening people? He was grudging, squirming difficult word. If 208 00:11:01,600 --> 00:11:04,200 Speaker 1: I'm the prosecution, I might seize on that word of 209 00:11:04,280 --> 00:11:08,800 Speaker 1: squirming because it's not indicative, in my viewing, suggestive or 210 00:11:08,800 --> 00:11:13,319 Speaker 1: honestly of those violent throws and violent actions. Whereas if 211 00:11:13,320 --> 00:11:15,839 Speaker 1: I'm the defense, I may try to explain what I 212 00:11:15,960 --> 00:11:18,480 Speaker 1: mean so I can explain it away and make it 213 00:11:18,559 --> 00:11:22,040 Speaker 1: clear that in the moment when Daniel Penny was obviously 214 00:11:22,080 --> 00:11:25,240 Speaker 1: anxious and this had just happened, he may have chosen 215 00:11:25,240 --> 00:11:27,760 Speaker 1: the wrong words, but the heart of what he was 216 00:11:27,800 --> 00:11:30,840 Speaker 1: saying was the same thing. I was holding this person 217 00:11:31,160 --> 00:11:32,880 Speaker 1: in a way that I felt was the best to 218 00:11:32,960 --> 00:11:36,240 Speaker 1: achieve and the safest for everyone to achieve, him from 219 00:11:36,520 --> 00:11:39,280 Speaker 1: not bringing anyone on their room worst on that train. 220 00:11:39,720 --> 00:11:41,960 Speaker 1: So squirming is something that I might see on as 221 00:11:41,960 --> 00:11:42,640 Speaker 1: a prosecution. 222 00:11:43,000 --> 00:11:47,280 Speaker 3: Police interviewed him on the day that Neely died and 223 00:11:47,360 --> 00:11:52,760 Speaker 3: then released him. That was criticized by some elected officials 224 00:11:53,200 --> 00:11:58,880 Speaker 3: and protesters demanded that Penny be arrested. Will that come. 225 00:11:58,720 --> 00:12:02,840 Speaker 1: In issues of something called Huntley hearing? It statements that 226 00:12:02,880 --> 00:12:05,679 Speaker 1: are made whether you're in custody and it's an interrogation. 227 00:12:05,720 --> 00:12:08,400 Speaker 1: As a matter of law, those issues aboady been litigated, 228 00:12:08,559 --> 00:12:10,840 Speaker 1: So you're not going to hear that litigation in and 229 00:12:10,840 --> 00:12:13,480 Speaker 1: of itself, but it could very well come in and 230 00:12:13,520 --> 00:12:16,360 Speaker 1: I would expect it to come in that he was 231 00:12:16,440 --> 00:12:20,000 Speaker 1: questioned and arrested only after the fact, because the prosecution 232 00:12:20,160 --> 00:12:21,760 Speaker 1: wants to tell a complete story. They don't want to 233 00:12:21,800 --> 00:12:24,679 Speaker 1: seem like they're hiding the ball and misrepresenting. They want 234 00:12:24,720 --> 00:12:27,480 Speaker 1: to explain why that occurred. Because if I'm the defense, 235 00:12:27,559 --> 00:12:29,280 Speaker 1: I want to seize on that and say, you guys 236 00:12:29,360 --> 00:12:33,160 Speaker 1: didn't arrest me initially. Look at because there's political pressure 237 00:12:33,400 --> 00:12:35,680 Speaker 1: only because of his outside voices and the issues of 238 00:12:35,760 --> 00:12:38,280 Speaker 1: race and the issues of subway safety and politics. Did 239 00:12:38,400 --> 00:12:41,360 Speaker 1: my client get arrested? And that's not just or justice. 240 00:12:41,520 --> 00:12:43,360 Speaker 1: So I would expect it to come in with both 241 00:12:43,400 --> 00:12:46,920 Speaker 1: sides trying to rationalize a reason why. And I will 242 00:12:46,960 --> 00:12:50,800 Speaker 1: say that this is not incredibly atypical. Certainly most people 243 00:12:50,840 --> 00:12:53,480 Speaker 1: are arrested in a moment, but there are times that 244 00:12:53,600 --> 00:12:56,520 Speaker 1: not only does the NYPD not make an arrest initially, 245 00:12:56,800 --> 00:13:00,320 Speaker 1: there are also times when prosecutors' offices DA's all is 246 00:13:00,679 --> 00:13:03,479 Speaker 1: do what's called a DP or a decline to prosecute 247 00:13:03,480 --> 00:13:08,000 Speaker 1: a case even after the process has started for further investigation, 248 00:13:08,120 --> 00:13:10,360 Speaker 1: only to later make an arrest. So this is not 249 00:13:10,559 --> 00:13:12,560 Speaker 1: necessarily typical, but it's not atypical either. 250 00:13:13,000 --> 00:13:16,080 Speaker 3: So what kind of juror are you looking for if 251 00:13:16,120 --> 00:13:19,080 Speaker 3: you are the prosecutor, and what kind if you're the defense. 252 00:13:19,840 --> 00:13:23,600 Speaker 1: Starting with the prosecution, I'm looking for in real New Yorker, 253 00:13:23,800 --> 00:13:27,080 Speaker 1: which is the opposite of what the defense is looking for. 254 00:13:27,360 --> 00:13:32,080 Speaker 1: I don't want my Florida, Texas, California, Iowa transplant. I'm 255 00:13:32,120 --> 00:13:34,920 Speaker 1: not looking for the guy or gal who's been around 256 00:13:34,920 --> 00:13:38,040 Speaker 1: the block once because they had to walk to school 257 00:13:38,160 --> 00:13:40,040 Speaker 1: or their new job, and they're so excited to be 258 00:13:40,080 --> 00:13:42,800 Speaker 1: in the big city, you know, bright eyed and excited. 259 00:13:43,160 --> 00:13:45,480 Speaker 1: Maybe mom and dad are paying the rents. That's the 260 00:13:45,520 --> 00:13:48,120 Speaker 1: person that the defense wants, because the defense wants that 261 00:13:48,360 --> 00:13:51,679 Speaker 1: overreacting individual who is not familiar with the subway life, 262 00:13:51,800 --> 00:13:55,760 Speaker 1: is not familiar with quote unquote goffing. Manhattanites are very 263 00:13:55,840 --> 00:13:57,920 Speaker 1: very different, who've ridden in that subway, who live their 264 00:13:57,960 --> 00:14:00,720 Speaker 1: lives to a better temper of jur that we would 265 00:14:00,760 --> 00:14:03,400 Speaker 1: expect the prosecution to want to take. You know, put 266 00:14:03,440 --> 00:14:05,920 Speaker 1: your head down, walk away, This too shall pass. 267 00:14:06,000 --> 00:14:09,120 Speaker 3: Would you rather be the prosecutor here or the defense attorney. 268 00:14:09,559 --> 00:14:12,640 Speaker 1: In this scenario? Whatman's asking me is trying to be 269 00:14:12,679 --> 00:14:14,480 Speaker 1: sneaky and sly what I think is going to happen. 270 00:14:14,520 --> 00:14:17,559 Speaker 1: That's what trying do I see, I see they It's 271 00:14:17,559 --> 00:14:21,440 Speaker 1: not my first rodeo. That being said, if I had 272 00:14:21,480 --> 00:14:24,280 Speaker 1: to take a side, which really sounds awkward saying that 273 00:14:24,400 --> 00:14:26,840 Speaker 1: was because this is such a tragic case of matiti result. 274 00:14:27,080 --> 00:14:28,440 Speaker 1: But if I had to take a side from a 275 00:14:28,520 --> 00:14:31,880 Speaker 1: legal perspective, I would want to work aside of the prosecution. 276 00:14:32,280 --> 00:14:34,080 Speaker 1: I think this is an uptill client to what I 277 00:14:34,120 --> 00:14:38,280 Speaker 1: have seen. I granted to process one hundred percent every 278 00:14:38,320 --> 00:14:41,320 Speaker 1: single person, every single time, and the process system, on 279 00:14:41,360 --> 00:14:45,320 Speaker 1: its course, will see the evidence. But that video is 280 00:14:45,360 --> 00:14:47,760 Speaker 1: not some overwhelming piece of evidence that we say, oh 281 00:14:47,760 --> 00:14:50,640 Speaker 1: my gosh, Daniel Plone, you know, was it reckless or negligent? 282 00:14:50,880 --> 00:14:54,160 Speaker 1: Remember not intentionally. It's not irrelevant. And those witnesses on 283 00:14:54,200 --> 00:14:56,680 Speaker 1: the subway from what I have read, which is not evidence, 284 00:14:56,720 --> 00:14:58,640 Speaker 1: and we'll see that evidence. But what I have read 285 00:14:58,800 --> 00:15:01,840 Speaker 1: there's nothing so over well, oh my gosh, you know, 286 00:15:01,960 --> 00:15:04,560 Speaker 1: if you've ridden the subway New York, this happened. 287 00:15:05,120 --> 00:15:05,720 Speaker 4: This happened. 288 00:15:06,320 --> 00:15:09,920 Speaker 1: It's terrible. It's sad in terms of people having episodes 289 00:15:10,040 --> 00:15:13,960 Speaker 1: or madic episodes, or misbehaving or even getting aggressive environment. 290 00:15:14,160 --> 00:15:17,240 Speaker 1: But that's something we see and I would not want 291 00:15:17,280 --> 00:15:19,600 Speaker 1: to be on the side of Daniel Penny. But let's 292 00:15:19,760 --> 00:15:23,120 Speaker 1: journey decide that it's not my job whether let's look 293 00:15:23,160 --> 00:15:24,240 Speaker 1: through process from each course. 294 00:15:24,400 --> 00:15:26,520 Speaker 3: The case is going to take quite a while, so 295 00:15:26,880 --> 00:15:29,880 Speaker 3: we'll check back with you. Thanks so much, Jeremy. That's 296 00:15:29,920 --> 00:15:34,840 Speaker 3: criminal defense attorney Jeremy Salande. Courts in battleground states are 297 00:15:34,920 --> 00:15:39,360 Speaker 3: getting ready to fight potential security threats, and they're expanding 298 00:15:39,440 --> 00:15:43,800 Speaker 3: resources to deal with an expected influx of election litigation. 299 00:15:44,520 --> 00:15:49,080 Speaker 3: In states like Arizona, Pennsylvania, and Nevada, courts are announcing 300 00:15:49,160 --> 00:15:53,760 Speaker 3: plans from speeding up election related cases and shortening appellate 301 00:15:53,880 --> 00:15:58,040 Speaker 3: deadlines to making sure every judge is on call on 302 00:15:58,160 --> 00:16:02,240 Speaker 3: election day and creating new social media accounts to get 303 00:16:02,280 --> 00:16:07,360 Speaker 3: out accurate information. Joining me is Suzanne Monnac, judiciary reporter 304 00:16:07,440 --> 00:16:11,680 Speaker 3: for Bloomberg Law. Let's start by talking about the concerns 305 00:16:11,760 --> 00:16:16,200 Speaker 3: that courts are having right now about the election. First, 306 00:16:16,240 --> 00:16:20,800 Speaker 3: I mean, we've heard about these increased threats against judges 307 00:16:21,040 --> 00:16:25,040 Speaker 3: and other judiciary workers. Tell us about that. If that's 308 00:16:25,240 --> 00:16:26,520 Speaker 3: part of the concern now. 309 00:16:27,280 --> 00:16:30,760 Speaker 4: Absolutely, threats against judges and other judiciary specials have been 310 00:16:30,800 --> 00:16:33,240 Speaker 4: on the rise in recent years. We've seen the number 311 00:16:33,280 --> 00:16:36,000 Speaker 4: of investigated threats by the US Marshals more than double 312 00:16:36,080 --> 00:16:39,320 Speaker 4: between twenty nineteen and twenty twenty three. Obviously, now as 313 00:16:39,320 --> 00:16:42,600 Speaker 4: we're heading into an election, these cases are their high profile, 314 00:16:42,680 --> 00:16:45,320 Speaker 4: they're watched on a national scale, and so as we're 315 00:16:45,320 --> 00:16:48,400 Speaker 4: seeing already this landscape where judges are at increased risk 316 00:16:48,560 --> 00:16:52,520 Speaker 4: of threat of harm, now they're handling a case of significant, 317 00:16:52,560 --> 00:16:55,200 Speaker 4: potentially political importance, especially if it's in any of these 318 00:16:55,240 --> 00:16:58,400 Speaker 4: battleground states, it may be a big decider in the election. 319 00:16:58,840 --> 00:17:02,040 Speaker 4: So anytime we have judges handling cases like that, especially 320 00:17:02,080 --> 00:17:04,840 Speaker 4: in this heightened threat landscape, you know there are just 321 00:17:04,920 --> 00:17:07,679 Speaker 4: going to be heightened security concerning what are they. 322 00:17:07,520 --> 00:17:10,600 Speaker 3: Doing about that? I mean, are they giving judges more security? 323 00:17:11,280 --> 00:17:13,600 Speaker 4: Obviously I had judges I spoke to for this story, 324 00:17:13,800 --> 00:17:16,440 Speaker 4: or hesitance has evolved too many you know details about 325 00:17:16,440 --> 00:17:19,399 Speaker 4: their specific security planning for obvious reasons. But we have 326 00:17:19,440 --> 00:17:22,000 Speaker 4: seen quite a bit of you know, improvement, ius I'll say, 327 00:17:22,080 --> 00:17:25,800 Speaker 4: more resources given to security thance the last election for example, 328 00:17:26,080 --> 00:17:28,200 Speaker 4: and a big reason for that is the tragic event 329 00:17:28,240 --> 00:17:30,520 Speaker 4: that happened in summer of twenty twenty when the son 330 00:17:30,600 --> 00:17:32,879 Speaker 4: of a New Jersey federal judge was murdered in his 331 00:17:32,960 --> 00:17:35,480 Speaker 4: own home by dis frontal attorney posing as a delivery 332 00:17:35,480 --> 00:17:37,920 Speaker 4: man in this horrible event was really a bit of 333 00:17:37,960 --> 00:17:40,000 Speaker 4: a wake up call for the judiciary on security. And 334 00:17:40,080 --> 00:17:43,000 Speaker 4: so we saw Congress past legislation a few years ago 335 00:17:43,080 --> 00:17:46,560 Speaker 4: trying to crack down on, you know, having publicly posted 336 00:17:46,600 --> 00:17:50,639 Speaker 4: personal identifying information for judges on the Internet, like their addresses, 337 00:17:50,880 --> 00:17:54,000 Speaker 4: or seeing judges being encouraged to use software to delete 338 00:17:54,040 --> 00:17:57,520 Speaker 4: information that may already be online. The judiciary has changed 339 00:17:57,520 --> 00:18:00,240 Speaker 4: their system to sort of try to encourage judges to 340 00:18:00,400 --> 00:18:02,919 Speaker 4: have home security systems and then get those reinverse. So 341 00:18:02,960 --> 00:18:05,120 Speaker 4: we are seeing programs on more of a national level 342 00:18:05,280 --> 00:18:08,760 Speaker 4: to you know, try to better protect judges. And obviously 343 00:18:08,760 --> 00:18:11,119 Speaker 4: every year the judiciary ask Congress for more money for 344 00:18:11,160 --> 00:18:14,400 Speaker 4: these security resources, and that's continued. So while there hasn't 345 00:18:14,440 --> 00:18:17,800 Speaker 4: been you know, necessarily you know, more bodyguards for individual judges, 346 00:18:18,200 --> 00:18:20,600 Speaker 4: per say, we are seeing really an increased focus on 347 00:18:20,600 --> 00:18:21,320 Speaker 4: this in Washington. 348 00:18:21,920 --> 00:18:24,520 Speaker 3: And so what are some of the other concerns that 349 00:18:24,600 --> 00:18:27,520 Speaker 3: the courts are having now as you know the election 350 00:18:27,640 --> 00:18:28,280 Speaker 3: is approaching. 351 00:18:28,640 --> 00:18:31,480 Speaker 4: These security concerns you know, are true for election cases. 352 00:18:31,520 --> 00:18:33,080 Speaker 4: There are of course also true for any you know, 353 00:18:33,160 --> 00:18:36,080 Speaker 4: high profile case you're dealing with, you know, a celebrity 354 00:18:36,160 --> 00:18:38,960 Speaker 4: or maybe some viral true crime case. But election cases 355 00:18:38,960 --> 00:18:41,560 Speaker 4: can be kind of like a unique situation for the courts, 356 00:18:41,760 --> 00:18:44,119 Speaker 4: and that they can be maybemaquely vulnerable to some of 357 00:18:44,119 --> 00:18:47,719 Speaker 4: these disinformation campaigns we've seen targeting the judiciary. This might 358 00:18:47,760 --> 00:18:50,240 Speaker 4: be you know that judges are biased or you know, 359 00:18:50,440 --> 00:18:52,879 Speaker 4: helped for one side over the other. While at the 360 00:18:52,920 --> 00:18:55,040 Speaker 4: same time we're seeing a lot of you know, claims 361 00:18:55,040 --> 00:18:58,320 Speaker 4: of elections broad including from former President Donald Trump. So 362 00:18:58,359 --> 00:19:01,119 Speaker 4: those two kinds of just them for me campaigns together 363 00:19:01,600 --> 00:19:04,560 Speaker 4: can really just put judges hearing election cases in a 364 00:19:04,760 --> 00:19:06,280 Speaker 4: really uniquely difficult situation. 365 00:19:07,040 --> 00:19:11,160 Speaker 3: What are they able to do about the disinformation either 366 00:19:11,240 --> 00:19:15,960 Speaker 3: Russian disinformation or Trump's disinformation or all the rest of 367 00:19:16,040 --> 00:19:18,600 Speaker 3: the inaccuracies we see online. 368 00:19:19,080 --> 00:19:21,959 Speaker 4: And it's certainly a difficult problem to tackle. You know, 369 00:19:21,960 --> 00:19:24,240 Speaker 4: I think we've seen some courts fetiship away at it 370 00:19:24,280 --> 00:19:28,240 Speaker 4: by trying to better publicize information about election cases, maybe 371 00:19:28,280 --> 00:19:31,160 Speaker 4: having a landing page on the home page of their website, 372 00:19:31,160 --> 00:19:34,600 Speaker 4: so the public, maybe especially amid increasing distrust in the 373 00:19:34,600 --> 00:19:36,600 Speaker 4: media and reporters, the public can go onto the court 374 00:19:36,640 --> 00:19:39,840 Speaker 4: website and click the case and see the filings for themselves. 375 00:19:39,880 --> 00:19:42,520 Speaker 4: The Pennsylvania State Court system, for example, a state we're 376 00:19:42,840 --> 00:19:45,919 Speaker 4: highly expected to have some contentious election litigation in that 377 00:19:45,960 --> 00:19:49,320 Speaker 4: battleground state, has launched a blue sky page and we 378 00:19:49,440 --> 00:19:52,400 Speaker 4: were social media platforms to kind of push out information 379 00:19:52,480 --> 00:19:55,040 Speaker 4: about high profile election cases. So I think we're trying 380 00:19:55,040 --> 00:19:57,399 Speaker 4: to see more transparency from the court, trying to make 381 00:19:57,440 --> 00:20:00,560 Speaker 4: these cases accessible to the public, where like court you know, 382 00:20:00,640 --> 00:20:03,080 Speaker 4: docket page may not be quite as accessible to someone 383 00:20:03,119 --> 00:20:06,280 Speaker 4: who isn't used to, you know, waiting through litigation. But 384 00:20:06,320 --> 00:20:08,560 Speaker 4: at the same time, of course, you know, these campaigns 385 00:20:08,560 --> 00:20:11,000 Speaker 4: are a challenge on a national scale, and you know, 386 00:20:11,040 --> 00:20:13,800 Speaker 4: there are researchers I've spoke to who really study disinformation 387 00:20:13,880 --> 00:20:15,920 Speaker 4: and they say it's coming from Russia and maybe other 388 00:20:16,000 --> 00:20:19,399 Speaker 4: foreign actors and sometimes from domestic actors as well. So 389 00:20:19,520 --> 00:20:21,360 Speaker 4: I mean it's, you know, one of those things that 390 00:20:21,800 --> 00:20:24,120 Speaker 4: you know, there's not one solution to you know, fight 391 00:20:24,280 --> 00:20:27,239 Speaker 4: election disinformation, and I think it's become you know of 392 00:20:27,400 --> 00:20:29,080 Speaker 4: increasing concern in racing years. 393 00:20:29,400 --> 00:20:33,400 Speaker 3: Is there more emphasis on this in the swing states, 394 00:20:33,480 --> 00:20:37,560 Speaker 3: the states that we think might determine the election. You 395 00:20:37,600 --> 00:20:40,679 Speaker 3: mentioned Pennsylvania that seems to be a you know, a 396 00:20:40,800 --> 00:20:41,320 Speaker 3: must win. 397 00:20:41,800 --> 00:20:44,800 Speaker 4: Absolutely. I mean, of course, election litigation can happen anywhere. 398 00:20:44,800 --> 00:20:47,240 Speaker 4: It can be contentious in any state. But I think, 399 00:20:47,480 --> 00:20:49,239 Speaker 4: you know, I bring up the battle around states, these 400 00:20:49,280 --> 00:20:52,359 Speaker 4: swing states, because I think probably the contensus is that 401 00:20:52,359 --> 00:20:55,600 Speaker 4: that's where these litigation might have the greatest impacts one 402 00:20:55,600 --> 00:20:58,119 Speaker 4: way or the other. You know, a state that is 403 00:20:58,160 --> 00:21:00,320 Speaker 4: not a swing state, it's probably like the election litigation 404 00:21:00,440 --> 00:21:02,680 Speaker 4: may just not have the same you know, national significance 405 00:21:02,720 --> 00:21:04,399 Speaker 4: as one in a battleground state. And so that just 406 00:21:04,440 --> 00:21:07,280 Speaker 4: means it's more likely to garner more public attention. And 407 00:21:07,320 --> 00:21:09,240 Speaker 4: it's just when you're not having cases with this much 408 00:21:09,280 --> 00:21:11,720 Speaker 4: public attention that you're more likely to see threats from 409 00:21:11,720 --> 00:21:14,399 Speaker 4: the public. People who are scrutinizing these cases. They're scrutinizing 410 00:21:14,400 --> 00:21:17,359 Speaker 4: the judges. They're calling chambers and threatening the judges if 411 00:21:17,400 --> 00:21:20,119 Speaker 4: they don't rule in favors, you know, whatever direction of 412 00:21:20,119 --> 00:21:22,679 Speaker 4: the case they think will benefit their favored candidate. And 413 00:21:22,720 --> 00:21:25,199 Speaker 4: so just you know, more national scrutiny, more national attention 414 00:21:25,720 --> 00:21:27,640 Speaker 4: just is always going to bring security threads. 415 00:21:28,000 --> 00:21:32,440 Speaker 3: And you're right that some courts and swing states are 416 00:21:32,480 --> 00:21:36,320 Speaker 3: trying to speed up election related cases and you know 417 00:21:36,359 --> 00:21:39,040 Speaker 3: one has every judge on call on election day. 418 00:21:40,560 --> 00:21:43,680 Speaker 4: Yes, security is not the only challenge for courts managing 419 00:21:43,800 --> 00:21:46,960 Speaker 4: this type of litigation. Sometimes it's just a resources challenge's 420 00:21:47,000 --> 00:21:50,400 Speaker 4: an administrative challenge. These cases are filed in both state 421 00:21:50,440 --> 00:21:53,760 Speaker 4: and several courts, but perhaps largely in state courts, and 422 00:21:53,800 --> 00:21:55,960 Speaker 4: depending on the court, you know, they may just know 423 00:21:56,080 --> 00:21:58,720 Speaker 4: there's not have resources. These courts have really very court 424 00:21:58,720 --> 00:22:00,879 Speaker 4: by court across the country, and of these courts just 425 00:22:00,920 --> 00:22:03,480 Speaker 4: may not be used to handling a case that is 426 00:22:03,560 --> 00:22:06,920 Speaker 4: so high profile and such national significance. And with these 427 00:22:06,960 --> 00:22:10,199 Speaker 4: cases also can come just like timeliness concurrency mentioned, you know, 428 00:22:10,320 --> 00:22:13,840 Speaker 4: speeding up processing of cases. You know, election days in November, 429 00:22:13,880 --> 00:22:16,639 Speaker 4: the inauguration is supposed to be you know, the following January. 430 00:22:17,080 --> 00:22:19,280 Speaker 4: That really is a time crunch to be able to 431 00:22:19,280 --> 00:22:22,719 Speaker 4: get through any very important election challenges that could determine 432 00:22:23,040 --> 00:22:25,480 Speaker 4: the outcome of the whole election. And so we've seen 433 00:22:25,520 --> 00:22:28,360 Speaker 4: courts you know, putting out guidance, you know, shortening appellate 434 00:22:28,400 --> 00:22:32,440 Speaker 4: deadlines to get these moving faster, asking judges to prioritize 435 00:22:32,440 --> 00:22:37,480 Speaker 4: election cases, perhaps over other cases. Or you mentioned on staffing. 436 00:22:37,520 --> 00:22:39,679 Speaker 4: I had it with former chief judge of the Nevada 437 00:22:39,680 --> 00:22:42,359 Speaker 4: Federal District Court tell me that starting for the twenty 438 00:22:42,359 --> 00:22:45,560 Speaker 4: twenty election, her court was having all judges, all active judges, 439 00:22:45,600 --> 00:22:48,200 Speaker 4: be on call for election day to make sure that 440 00:22:48,240 --> 00:22:53,080 Speaker 4: if they had multiple emergency motions requesting emergency time sensitive relief, 441 00:22:53,440 --> 00:22:54,879 Speaker 4: they would have the resources to handle that. 442 00:22:55,760 --> 00:22:58,520 Speaker 3: And in these swing states, we're seeing a lot of 443 00:22:59,000 --> 00:23:03,760 Speaker 3: pre election litigation over some important issues having to do 444 00:23:03,960 --> 00:23:07,000 Speaker 3: with not only who can vote, but how the votes 445 00:23:07,000 --> 00:23:07,560 Speaker 3: are counted. 446 00:23:08,400 --> 00:23:10,800 Speaker 4: Absolutely these cases, I mean, there's already been quite a 447 00:23:10,800 --> 00:23:12,879 Speaker 4: few files. So when I say their course starret you know, 448 00:23:12,960 --> 00:23:15,760 Speaker 4: gearing up or so for election litigation, you know it's 449 00:23:15,800 --> 00:23:18,439 Speaker 4: already begun, and I think we're expecting more to follow, 450 00:23:18,800 --> 00:23:20,159 Speaker 4: you know, some of the types of cases that have 451 00:23:20,240 --> 00:23:22,879 Speaker 4: been you know, while so far we've already had a 452 00:23:23,080 --> 00:23:26,480 Speaker 4: state court in Georgia block of Republican election boards moved 453 00:23:26,520 --> 00:23:31,440 Speaker 4: to mandate that ballots be hand counted. Other litigation that's 454 00:23:31,480 --> 00:23:34,240 Speaker 4: in filed that's been you know, in Pennsylvania over like 455 00:23:34,280 --> 00:23:36,480 Speaker 4: whether ballots can be you know, accepted if they have 456 00:23:36,560 --> 00:23:38,760 Speaker 4: the wrong date or they don't have a date. So 457 00:23:38,880 --> 00:23:41,600 Speaker 4: just a lot of different types of issues in the 458 00:23:41,600 --> 00:23:45,400 Speaker 4: election system regarding you know, mail in voting, voter eligibility, 459 00:23:45,440 --> 00:23:48,359 Speaker 4: that sort of thing that we're seeing in battle ground 460 00:23:48,359 --> 00:23:49,439 Speaker 4: states across the country. 461 00:23:50,160 --> 00:23:52,920 Speaker 3: I saw you you talk to Texas Supreme Court Chief 462 00:23:53,080 --> 00:23:56,080 Speaker 3: Justice Nathan Heckton. He said elections are hard on the 463 00:23:56,160 --> 00:24:01,200 Speaker 3: judiciary because the public is thinking everything's political everything, and 464 00:24:01,240 --> 00:24:04,280 Speaker 3: that the courts must be too, and so judges are 465 00:24:04,320 --> 00:24:07,639 Speaker 3: concerned about the public's perception of fairness. 466 00:24:08,359 --> 00:24:11,520 Speaker 4: I think absolutely, I think concerned about public distrust and 467 00:24:11,520 --> 00:24:14,000 Speaker 4: the judiciary has to be top of minds for judges. 468 00:24:14,080 --> 00:24:16,280 Speaker 4: I mean, their goal is, you know, they want to 469 00:24:16,280 --> 00:24:19,800 Speaker 4: be an independent, you know, impartial decider, a judicator. If 470 00:24:19,840 --> 00:24:22,399 Speaker 4: the public, you know, thinks that judges are biased, you know, 471 00:24:22,440 --> 00:24:25,919 Speaker 4: it certainly is a pretty significant hit to the judiciary's credibility. So, 472 00:24:26,000 --> 00:24:28,160 Speaker 4: I mean, I think most judges, you know, they see 473 00:24:28,160 --> 00:24:31,000 Speaker 4: that they see this trend in this polling while also 474 00:24:31,040 --> 00:24:33,560 Speaker 4: it seeing a rise in security threats to them, And 475 00:24:34,160 --> 00:24:37,280 Speaker 4: I think it's concerning across the board, you know, Judge Heston. 476 00:24:37,359 --> 00:24:39,280 Speaker 4: Actually he mentions me as well that you know, in 477 00:24:39,320 --> 00:24:42,480 Speaker 4: some states like his, for example, judges run in partisan 478 00:24:42,520 --> 00:24:44,760 Speaker 4: elections for their seats, and that's something we see in 479 00:24:44,800 --> 00:24:46,960 Speaker 4: some state courts. And he told me that's not something 480 00:24:46,960 --> 00:24:49,439 Speaker 4: he's actually for. And it's just sort of all of 481 00:24:49,440 --> 00:24:52,320 Speaker 4: these things that can make it, you know, can erode 482 00:24:52,400 --> 00:24:54,800 Speaker 4: really I guess space in the judiciary and make it 483 00:24:54,840 --> 00:24:56,200 Speaker 4: harder for judges to do their job. 484 00:24:56,400 --> 00:24:59,119 Speaker 3: I want to turn for a moment, Susan to the 485 00:24:59,200 --> 00:25:04,320 Speaker 3: controversy over that Alaska judge. Start by telling us about 486 00:25:04,440 --> 00:25:09,760 Speaker 3: former Alaska judge Joshua Kindred and the scandals surrounding him. 487 00:25:10,200 --> 00:25:13,040 Speaker 4: Yes, there's been quite a judicial ethics saga coming out 488 00:25:13,119 --> 00:25:17,000 Speaker 4: of Alaska. Former Judge Joshua Kindred, as a Trump appointee, 489 00:25:17,400 --> 00:25:21,359 Speaker 4: resigned in July amid findings by the Appellate Court Judicial 490 00:25:21,359 --> 00:25:24,320 Speaker 4: Counsel that he had engaged in very serious sexual misconducts, 491 00:25:24,359 --> 00:25:28,000 Speaker 4: including sexual harassment with his former clerk, as well as 492 00:25:28,040 --> 00:25:31,399 Speaker 4: inappropriate relationships with attorneys who appeared before him, and he 493 00:25:31,520 --> 00:25:35,080 Speaker 4: lied about it to judicial investigators. This judge has since resigned, 494 00:25:35,080 --> 00:25:37,120 Speaker 4: but in the week of his departure, we have seen 495 00:25:37,160 --> 00:25:39,760 Speaker 4: now significant potential conflicts of interest in some of his 496 00:25:39,880 --> 00:25:42,479 Speaker 4: past cases, involving those where he might have had an 497 00:25:42,480 --> 00:25:45,240 Speaker 4: inappropriate relationship with one of the attorneys in the case. 498 00:25:45,520 --> 00:25:49,240 Speaker 3: Defense lawyers obviously have looked at the conflicts of interest 499 00:25:49,440 --> 00:25:52,840 Speaker 3: and tried to take advantage of them, and actually one 500 00:25:53,119 --> 00:25:55,679 Speaker 3: judge has ordered a new trial in one case. 501 00:25:56,119 --> 00:25:59,080 Speaker 4: Yes, both the Alaska US Attorney's Office and federal defenders 502 00:25:59,080 --> 00:26:01,719 Speaker 4: have identified does of cases where there may have been 503 00:26:01,800 --> 00:26:06,120 Speaker 4: potential conflicts of interest. These incublud cases where Judge Kendred 504 00:26:06,560 --> 00:26:08,239 Speaker 4: saw the case through to the end, as well as 505 00:26:08,280 --> 00:26:11,840 Speaker 4: cases where he recused midway through once the judiciary started 506 00:26:11,880 --> 00:26:14,400 Speaker 4: investigating him. In his times to some of these lawyers 507 00:26:14,400 --> 00:26:17,080 Speaker 4: were revealed, and so that'll be the defenders at least 508 00:26:17,119 --> 00:26:19,399 Speaker 4: were taking a look to see if there's a an 509 00:26:19,400 --> 00:26:21,320 Speaker 4: avenue for relief for their client. And yes, as he 510 00:26:21,400 --> 00:26:23,440 Speaker 4: mentioned last month, we saw that for the first time 511 00:26:23,840 --> 00:26:26,480 Speaker 4: we saw an Alaska federal court case being overseen by 512 00:26:26,680 --> 00:26:29,040 Speaker 4: a visiting judge from within the circuit or she ordered 513 00:26:29,080 --> 00:26:32,040 Speaker 4: a new trial for a defendant because in his case, 514 00:26:32,160 --> 00:26:36,040 Speaker 4: though this attorney had not actually been officially an attorney 515 00:26:36,119 --> 00:26:38,920 Speaker 4: of records for the prosecution she had had a supervisory role. 516 00:26:39,400 --> 00:26:41,080 Speaker 4: This is an attorney who had been found by the 517 00:26:41,160 --> 00:26:43,879 Speaker 4: Judicial Council to have sent explicit photos of herself to 518 00:26:44,040 --> 00:26:46,200 Speaker 4: the judge as a part of some sort of flirtatious 519 00:26:46,320 --> 00:26:48,720 Speaker 4: relationship to two of them had and as a result 520 00:26:48,760 --> 00:26:50,600 Speaker 4: of the fact that she had sent those photos and 521 00:26:50,640 --> 00:26:52,880 Speaker 4: had a supervisory role in the case, the judge felt 522 00:26:52,920 --> 00:26:55,119 Speaker 4: that there was at a very least an appearance of 523 00:26:55,119 --> 00:26:57,720 Speaker 4: a significant conflict that merited a new trials describe is 524 00:26:57,760 --> 00:26:59,520 Speaker 4: going to get a full redo under a new judge. 525 00:27:00,000 --> 00:27:04,000 Speaker 3: So for the first time, federal prosecutors are asking to 526 00:27:04,080 --> 00:27:07,080 Speaker 3: have a case thrown out, a criminal conviction, one of 527 00:27:07,160 --> 00:27:08,040 Speaker 3: Kindred's cases. 528 00:27:08,480 --> 00:27:10,840 Speaker 4: That's right. Up until now, we've seen you know, requested 529 00:27:10,840 --> 00:27:13,879 Speaker 4: by defense lawyers, largely mostly on the criminal side, though 530 00:27:13,880 --> 00:27:15,960 Speaker 4: at least one civil case trying to have you know, 531 00:27:16,119 --> 00:27:19,200 Speaker 4: decisions against their clients thrown out based on the presence 532 00:27:19,240 --> 00:27:21,240 Speaker 4: of this attorney who'd sent photos. 533 00:27:20,920 --> 00:27:21,560 Speaker 2: To the judge. 534 00:27:21,640 --> 00:27:23,600 Speaker 4: And then last night we saw it really go a 535 00:27:23,600 --> 00:27:26,520 Speaker 4: step further when the Justice Department itself, you know, it's 536 00:27:26,560 --> 00:27:29,400 Speaker 4: part of its own case review, identified a case where 537 00:27:29,440 --> 00:27:31,880 Speaker 4: it felt that it was a significant conflict of interest 538 00:27:31,920 --> 00:27:33,840 Speaker 4: that had to bring it to the court and asked 539 00:27:33,840 --> 00:27:36,200 Speaker 4: to vacate a conviction that had happened two years ago 540 00:27:36,520 --> 00:27:38,520 Speaker 4: as a result of the judicial and you know, really 541 00:27:38,560 --> 00:27:41,440 Speaker 4: prospecatorial in this conduct. Here, they for the first time 542 00:27:41,600 --> 00:27:45,400 Speaker 4: publicly identified the lawyer who had been sending the nude 543 00:27:45,400 --> 00:27:48,800 Speaker 4: photos to the judge. Bloomberg has already reported her identity, 544 00:27:48,840 --> 00:27:51,679 Speaker 4: but had been unnamed so far in public court filings. 545 00:27:51,720 --> 00:27:54,040 Speaker 4: And they revealed that this lawyer had had ex party 546 00:27:54,160 --> 00:27:57,879 Speaker 4: conversations with the judge about this case. So just you know, 547 00:27:57,960 --> 00:28:02,280 Speaker 4: really serious disclosure regards being prostatorial in judicial misconduct. 548 00:28:02,280 --> 00:28:05,400 Speaker 3: Here, the Justice Department told the court it learned from 549 00:28:05,400 --> 00:28:09,840 Speaker 3: a hearsay source about an ex party conversation the judge 550 00:28:09,840 --> 00:28:11,240 Speaker 3: had with this prosecutor. 551 00:28:11,960 --> 00:28:15,480 Speaker 4: Yeah. Absolutely, and that's I mean, that's a very significant disclosure, 552 00:28:15,920 --> 00:28:18,720 Speaker 4: especially the current straight from the Justice Department. You know, 553 00:28:18,760 --> 00:28:21,600 Speaker 4: I think there's been a speculation among the defense bar that, oh, 554 00:28:21,640 --> 00:28:24,240 Speaker 4: if the judge is, you know, having this flirtatious, you know, 555 00:28:24,320 --> 00:28:28,560 Speaker 4: sexting relationship with a prosecutor, that perhaps there's conversations happening 556 00:28:28,680 --> 00:28:31,119 Speaker 4: between them about cases. But to hear it from the 557 00:28:31,240 --> 00:28:34,879 Speaker 4: Justice Department itself was significant and This also isn't you know, 558 00:28:34,920 --> 00:28:37,720 Speaker 4: the first time we already saw a request this time 559 00:28:37,760 --> 00:28:40,800 Speaker 4: by earlier by the defense bar regarding the judge having 560 00:28:40,880 --> 00:28:44,240 Speaker 4: you know, conversations with another prosecutor in the office who 561 00:28:44,280 --> 00:28:46,600 Speaker 4: wasn't actually on that case. This has you know, been 562 00:28:46,680 --> 00:28:49,040 Speaker 4: raised before that this judge it has been having you know, 563 00:28:49,080 --> 00:28:52,440 Speaker 4: sexual relationships of some kind with more than one prosecutor 564 00:28:52,640 --> 00:28:54,400 Speaker 4: and what kind of conflict whether it's going to present 565 00:28:54,520 --> 00:28:56,240 Speaker 4: for the defendants in his core room. 566 00:28:57,000 --> 00:28:59,080 Speaker 3: I was just interested in this. You said that of 567 00:28:59,200 --> 00:29:02,160 Speaker 3: the motion to vag Kate was signed by Stephen Klemer, 568 00:29:02,200 --> 00:29:05,720 Speaker 3: a veteran fixer recently deployed to the Alaska What do 569 00:29:05,760 --> 00:29:06,400 Speaker 3: you do about that? 570 00:29:06,760 --> 00:29:09,080 Speaker 4: Mister Klemer was you know, deployed over to the office, 571 00:29:09,440 --> 00:29:11,520 Speaker 4: you know, just a few months ago. My colleague's a 572 00:29:11,640 --> 00:29:14,680 Speaker 4: Justice Department reporter, was the one to report on his entrance, 573 00:29:14,680 --> 00:29:18,000 Speaker 4: and he's since filed his name in multiple dockets of 574 00:29:18,040 --> 00:29:20,360 Speaker 4: cases that are being reviewed. And I think it really 575 00:29:20,400 --> 00:29:23,160 Speaker 4: just goes to show that the Justice Department sees a 576 00:29:23,200 --> 00:29:26,200 Speaker 4: problem here that they've now brought in somebody with decades 577 00:29:26,240 --> 00:29:28,920 Speaker 4: of experience and these kinds of issues to be you know, 578 00:29:29,440 --> 00:29:32,000 Speaker 4: going to Alaska filing, you know, an appearance on these 579 00:29:32,080 --> 00:29:35,200 Speaker 4: dockets and engaging in this case review to find potential 580 00:29:35,200 --> 00:29:38,000 Speaker 4: conflicts between the judge and attorneys with the last US 581 00:29:38,040 --> 00:29:38,920 Speaker 4: Attorney's office. 582 00:29:39,040 --> 00:29:43,000 Speaker 3: And it's probably going to be years that this saga 583 00:29:43,080 --> 00:29:46,640 Speaker 3: is going to play out. What an unusual case. Thanks 584 00:29:46,680 --> 00:29:51,360 Speaker 3: so much, Suzanne. That's Bloomberg Lawn Judiciary reporter Suzanne Monnac. 585 00:29:51,840 --> 00:29:54,480 Speaker 3: And that's it for this edition of the Bloomberg Law Podcast. 586 00:29:54,840 --> 00:29:57,200 Speaker 3: Remember you've can always get the latest legal news by 587 00:29:57,240 --> 00:30:01,080 Speaker 3: subscribing and listening to the show on apple Pie podcast, Spotify, 588 00:30:01,360 --> 00:30:05,200 Speaker 3: and at Bloomberg dot com, Slash podcast, Slash Law. I'm 589 00:30:05,280 --> 00:30:07,719 Speaker 3: June Grosso and this is Bloomberg