1 00:00:03,080 --> 00:00:08,320 Speaker 1: You're listening to Bloomberg Law with June Grosso from Bloomberg Radio. 2 00:00:10,600 --> 00:00:14,360 Speaker 1: To millions of viewers, Fox News hosts promoted Donald Trump's 3 00:00:14,400 --> 00:00:18,360 Speaker 1: false theories about a stolen election, allowing his allies to 4 00:00:18,400 --> 00:00:22,079 Speaker 1: spout those claims on their airwaves in prime time, but 5 00:00:22,200 --> 00:00:25,960 Speaker 1: to one another, the host and top executives expressed doubts 6 00:00:25,960 --> 00:00:29,400 Speaker 1: about the claims and mocked the people making them. As 7 00:00:29,480 --> 00:00:32,360 Speaker 1: part of its one point eight billion dollar defamation suit 8 00:00:32,400 --> 00:00:37,120 Speaker 1: against Fox, Dominion Voting Systems has revealed private communications of 9 00:00:37,200 --> 00:00:41,920 Speaker 1: hosts like Tucker Carlson and Laura Ingraham and network bigwigs, 10 00:00:42,040 --> 00:00:47,120 Speaker 1: including the chairman of Fox Corporation, Rupert Murdoch. Quote Sidney 11 00:00:47,120 --> 00:00:51,160 Speaker 1: Powell is lying end quote. Carlson texted a producer about 12 00:00:51,200 --> 00:00:55,960 Speaker 1: Trump's lawyer. Ingraham texted Carlson that Powell is quote a 13 00:00:56,080 --> 00:00:59,280 Speaker 1: complete nut. No one will work with her. Here's that 14 00:00:59,400 --> 00:01:02,960 Speaker 1: lawyer that Ingraham called a complete nut on her show. 15 00:01:03,560 --> 00:01:07,280 Speaker 1: This is coup five point zero and in the Department 16 00:01:07,319 --> 00:01:10,120 Speaker 1: of Justice and the FBI really need to get after 17 00:01:10,200 --> 00:01:13,679 Speaker 1: it right now and investigate all the reports of fraud. 18 00:01:13,720 --> 00:01:17,399 Speaker 1: There are hundreds of them. Well, I hope at Charney 19 00:01:17,440 --> 00:01:21,039 Speaker 1: General Barr is doing that. Very very hopeful that he's 20 00:01:21,080 --> 00:01:23,280 Speaker 1: doing that. Otherwise we're in big trouble as a country, 21 00:01:23,360 --> 00:01:26,319 Speaker 1: especially with elections going forward. Joining me is Douglas Morrell, 22 00:01:26,440 --> 00:01:29,640 Speaker 1: a partner at Greenberg Gloucesker. I want you to start 23 00:01:29,720 --> 00:01:35,000 Speaker 1: by explaining Dominions claims. What are they alleging in this lawsuit? So, 24 00:01:35,080 --> 00:01:39,960 Speaker 1: in its lawsuit against Fox, Dominion Voting Systems is essentially 25 00:01:40,040 --> 00:01:48,440 Speaker 1: claiming that Fox knowingly published a series of statements by 26 00:01:48,720 --> 00:01:52,800 Speaker 1: not only others, but by its own presenters, its own 27 00:01:52,840 --> 00:01:59,680 Speaker 1: show hosts that falsely claimed that somehow Dominions voting machines 28 00:02:00,000 --> 00:02:03,920 Speaker 1: were responsible for flipping votes or for changing the outcome 29 00:02:04,200 --> 00:02:08,440 Speaker 1: of the twenty twenty presidential election. Obviously, a news organization 30 00:02:08,639 --> 00:02:11,720 Speaker 1: is involved. So what does Dominion have to prove to 31 00:02:11,760 --> 00:02:17,160 Speaker 1: make its case. So Dominion has acknowledged in this case 32 00:02:17,680 --> 00:02:21,520 Speaker 1: that it is a public figure, and that has a 33 00:02:21,600 --> 00:02:26,240 Speaker 1: significant effect upon what has to be proven in order 34 00:02:26,280 --> 00:02:30,440 Speaker 1: to prevail in a defamation case. Specifically, because it's a 35 00:02:30,440 --> 00:02:34,360 Speaker 1: public figure, it has to show that the statements that 36 00:02:34,400 --> 00:02:38,240 Speaker 1: were aired by Fox were aired knowing them to be false, 37 00:02:38,760 --> 00:02:42,480 Speaker 1: or were aired with reckless disregard for their truth, or falsity, 38 00:02:42,680 --> 00:02:47,600 Speaker 1: and the evidence that Dominion has presented so far would 39 00:02:47,600 --> 00:02:52,600 Speaker 1: seem to be one of those rare situations where that 40 00:02:53,160 --> 00:02:57,680 Speaker 1: test can be met, and so the case may well 41 00:02:57,919 --> 00:03:01,960 Speaker 1: be decided without the knee for a trial, or if 42 00:03:02,000 --> 00:03:04,639 Speaker 1: it goes to trial, I think the evidence is very 43 00:03:04,680 --> 00:03:09,760 Speaker 1: strong that that test that standard will be met. Is 44 00:03:09,800 --> 00:03:13,200 Speaker 1: there a difference when a news organization is involved. The 45 00:03:13,360 --> 00:03:19,680 Speaker 1: standard that applies to news organizations really isn't necessarily different 46 00:03:20,280 --> 00:03:24,840 Speaker 1: from the standard that would apply in a regular individual 47 00:03:25,200 --> 00:03:29,440 Speaker 1: defamation case. The fact, though, is that when you're dealing 48 00:03:29,480 --> 00:03:35,080 Speaker 1: with a media defendant, the question of publication, which is 49 00:03:35,120 --> 00:03:39,120 Speaker 1: an element of any defamation case, is usually a foregone conclusion. 50 00:03:39,520 --> 00:03:42,880 Speaker 1: If we were talking about a situation where you and 51 00:03:42,920 --> 00:03:46,120 Speaker 1: I were having a private conversation and I said nasty 52 00:03:46,200 --> 00:03:50,120 Speaker 1: things about you, that would not be subject to a 53 00:03:50,160 --> 00:03:54,560 Speaker 1: defamation claim because it hasn't been published to any third party. 54 00:03:54,960 --> 00:03:59,400 Speaker 1: So whenever a media defendant is involved, by definition, there's 55 00:03:59,400 --> 00:04:02,160 Speaker 1: been a publication and that element is taken care of, 56 00:04:02,720 --> 00:04:05,880 Speaker 1: but all of the other elements of a defamation claim 57 00:04:05,920 --> 00:04:09,520 Speaker 1: remain the same. In the papers supporting the motion for 58 00:04:09,760 --> 00:04:14,480 Speaker 1: summary judgment, Dominion describes people from the top of the organization, 59 00:04:14,920 --> 00:04:18,920 Speaker 1: on air hosts, people behind the camera discussing that these 60 00:04:18,960 --> 00:04:23,039 Speaker 1: claims about a stolen election were false. Yeah. So what 61 00:04:23,240 --> 00:04:27,600 Speaker 1: is interesting about the summary judgment papers that Dominion has 62 00:04:27,640 --> 00:04:32,760 Speaker 1: filed is the nature and extent of the evidence that 63 00:04:32,800 --> 00:04:38,239 Speaker 1: they've been able to accumulate through discovery and from Rupert 64 00:04:38,320 --> 00:04:44,040 Speaker 1: Murdoch on down to the on air talent that Fox 65 00:04:44,360 --> 00:04:49,440 Speaker 1: us and in some cases still uses. There are a 66 00:04:49,480 --> 00:04:58,400 Speaker 1: wealth of emails, text messages and deposition testimony which seem 67 00:04:58,480 --> 00:05:02,920 Speaker 1: to pretty clearly indicate that they knew that what was 68 00:05:02,960 --> 00:05:08,559 Speaker 1: being broadcast and what they themselves were broadcasting were lies. 69 00:05:09,560 --> 00:05:14,599 Speaker 1: And that is extraordinarily unusual to find in a case 70 00:05:14,960 --> 00:05:21,320 Speaker 1: of defamation. You don't have the party accused essentially confessing 71 00:05:22,120 --> 00:05:26,520 Speaker 1: that this is our modus operandi. And indeed, you know, 72 00:05:26,560 --> 00:05:29,839 Speaker 1: what is now seems to be apparent is that lying 73 00:05:30,160 --> 00:05:35,279 Speaker 1: was a part of Fox's business model, and that's because 74 00:05:35,760 --> 00:05:40,920 Speaker 1: they were concerned that their viewers were being turned off 75 00:05:41,240 --> 00:05:44,960 Speaker 1: by having them tell the truth about what occurred with 76 00:05:45,040 --> 00:05:48,760 Speaker 1: respect to the twenty twenty election, and we're instead turning 77 00:05:48,760 --> 00:05:53,560 Speaker 1: to other sources such as Newsmax. So is it enough 78 00:05:53,640 --> 00:05:56,880 Speaker 1: that they lied? Does Dominion have to prove anything else. 79 00:05:57,279 --> 00:06:03,080 Speaker 1: Dominion has to prove that knew that what was being 80 00:06:03,160 --> 00:06:07,880 Speaker 1: broadcast were lots and the evidence that's been accumulated thus 81 00:06:07,960 --> 00:06:12,720 Speaker 1: far would seem to pretty clearly show that there was 82 00:06:12,839 --> 00:06:16,800 Speaker 1: that knowledge at a point in time when it was 83 00:06:16,920 --> 00:06:22,920 Speaker 1: quite clear that Dominion had no culpability with respect to 84 00:06:23,640 --> 00:06:28,799 Speaker 1: changing votes or hiding votes or manipulating vote. And what's 85 00:06:28,960 --> 00:06:32,800 Speaker 1: unusual too about this case is that in an ordinary 86 00:06:32,880 --> 00:06:37,960 Speaker 1: defamation lawsuit, you might have a single story where a 87 00:06:38,000 --> 00:06:42,760 Speaker 1: statement made within that one story is found to be defamatory. 88 00:06:43,080 --> 00:06:49,039 Speaker 1: Here you have an ongoing series of broadcast statements made 89 00:06:49,040 --> 00:06:53,640 Speaker 1: by people who we now know knew that what they 90 00:06:53,680 --> 00:06:57,720 Speaker 1: were saying was untruthful at the time they said it, 91 00:06:58,000 --> 00:07:01,640 Speaker 1: and that there was not just one instance of this, 92 00:07:02,120 --> 00:07:06,520 Speaker 1: but it occurred time and time again with multiple on 93 00:07:06,640 --> 00:07:10,680 Speaker 1: air talent. Fox said the dominion filing mischaracterized the record 94 00:07:10,840 --> 00:07:14,840 Speaker 1: Jerry pick quote, stripped of key context, and spilled considerable 95 00:07:14,920 --> 00:07:18,640 Speaker 1: ink on facts that are irrelevant under black letter principles 96 00:07:18,680 --> 00:07:24,000 Speaker 1: of defamation law. Is that possible, Well, let me say 97 00:07:24,000 --> 00:07:27,800 Speaker 1: that none of us on the outside have a full 98 00:07:27,880 --> 00:07:32,720 Speaker 1: record of everything that has been discovered during the course 99 00:07:32,760 --> 00:07:36,000 Speaker 1: of this litigation, and indeed we may never have that. 100 00:07:36,560 --> 00:07:40,680 Speaker 1: For example, the one hundred and ninety two page filing 101 00:07:41,240 --> 00:07:48,080 Speaker 1: that Dominion presented is replete with blacked out information, so 102 00:07:48,720 --> 00:07:52,800 Speaker 1: we don't even know the full extent of everything that 103 00:07:53,080 --> 00:07:57,280 Speaker 1: Dominion knows, and it's not entirely clear to me why 104 00:07:57,960 --> 00:08:02,280 Speaker 1: those redactions were made in this motion. The motion itself 105 00:08:02,400 --> 00:08:06,720 Speaker 1: was withheld from public disclosure, was sealed when it was 106 00:08:06,760 --> 00:08:12,320 Speaker 1: originally filed, and it was only subsequently publicly released, but 107 00:08:12,520 --> 00:08:15,800 Speaker 1: released in a manner where we still don't know the 108 00:08:15,880 --> 00:08:19,760 Speaker 1: full extent of everything that's been said. Now, it's possible 109 00:08:19,800 --> 00:08:23,640 Speaker 1: that Fox is correct that there has been some selective 110 00:08:23,960 --> 00:08:29,600 Speaker 1: editing or cherry picking of quotes, and that perhaps context 111 00:08:30,120 --> 00:08:33,560 Speaker 1: needs to be flashed out, but that's a job that 112 00:08:33,679 --> 00:08:36,040 Speaker 1: Fox is going to have to do on its own, 113 00:08:36,520 --> 00:08:41,079 Speaker 1: and we will see whether they're able to put meat 114 00:08:41,320 --> 00:08:45,280 Speaker 1: on the bones that it has presented. So Fox lawyers 115 00:08:45,440 --> 00:08:49,040 Speaker 1: also claim that everything their anchors said was protected by 116 00:08:49,040 --> 00:08:54,880 Speaker 1: the First Amendment, and argues that by covering Trump's fraud claims, 117 00:08:54,880 --> 00:08:58,880 Speaker 1: the network was doing what any media organization would reporting 118 00:08:58,880 --> 00:09:03,640 Speaker 1: and commenting on a matter of undeniable newsworthiness. So the 119 00:09:03,920 --> 00:09:09,920 Speaker 1: newsworthiness defense, along with the fair and true report defense, 120 00:09:10,440 --> 00:09:14,640 Speaker 1: along with the neutral reportage defense that Fox has raised 121 00:09:15,040 --> 00:09:20,840 Speaker 1: in this case, have all been essentially, if not completely eviscerated, 122 00:09:21,360 --> 00:09:26,480 Speaker 1: largely rendered moot by prior decisions of the court that 123 00:09:26,679 --> 00:09:32,320 Speaker 1: refused to allow Fox to have the case dismissed before 124 00:09:32,400 --> 00:09:37,320 Speaker 1: this point. And so those claims bring quite hollow in 125 00:09:37,440 --> 00:09:42,079 Speaker 1: light of what the trial judge has already determined. And 126 00:09:42,320 --> 00:09:47,679 Speaker 1: so Fox, I think is engaged in more of a 127 00:09:47,840 --> 00:09:53,120 Speaker 1: pr offensive than it is in trying to convince the 128 00:09:53,200 --> 00:09:57,280 Speaker 1: court that what it has already decided is wrong. That 129 00:09:57,480 --> 00:10:00,400 Speaker 1: tell us what the judge has already decided the case. 130 00:10:00,880 --> 00:10:04,080 Speaker 1: At an early stage in any case, you have the 131 00:10:04,120 --> 00:10:09,600 Speaker 1: opportunity to challenge a lawsuit based exclusively upon what the 132 00:10:09,640 --> 00:10:12,640 Speaker 1: pleadings in the case say, what the complaint that was 133 00:10:12,720 --> 00:10:16,480 Speaker 1: filed said, and you do that by way of emotion 134 00:10:16,559 --> 00:10:22,120 Speaker 1: to dismiss In this case, the complaint that Dominion filed 135 00:10:22,800 --> 00:10:28,040 Speaker 1: was extraordinarily detailed. I don't recall how many hundreds of 136 00:10:28,080 --> 00:10:34,880 Speaker 1: pages were filed, but it included lots of evidence that 137 00:10:35,480 --> 00:10:41,000 Speaker 1: it had accumulated even without having access to text messages 138 00:10:41,080 --> 00:10:46,360 Speaker 1: and emails and other material through deposition, it had access 139 00:10:46,440 --> 00:10:52,959 Speaker 1: to information that when these broadcasters from Fox were making 140 00:10:53,000 --> 00:11:01,240 Speaker 1: these claims, that the facts of Dominions non involved in 141 00:11:01,400 --> 00:11:06,520 Speaker 1: any election rigging were absolutely clear, they had been investigated, 142 00:11:06,880 --> 00:11:11,440 Speaker 1: they had been adjudicated in cases in which Dominion's conduct 143 00:11:11,559 --> 00:11:15,319 Speaker 1: was put in issue, and it was known to the 144 00:11:15,360 --> 00:11:20,480 Speaker 1: world that these claims about Dominions voting machines were false. 145 00:11:21,120 --> 00:11:26,920 Speaker 1: But yet even after that had occurred, Fox posts continued 146 00:11:27,360 --> 00:11:32,120 Speaker 1: to make these unfounded and in many cases outrageous claims 147 00:11:32,600 --> 00:11:38,640 Speaker 1: about Dominion wholly without any acknowledgement of the fact that 148 00:11:39,280 --> 00:11:42,880 Speaker 1: these were false. And you know, it's one thing for 149 00:11:43,160 --> 00:11:47,160 Speaker 1: a guest on a show to make claims that one 150 00:11:47,240 --> 00:11:50,800 Speaker 1: may not know are going to be false. It's quite 151 00:11:50,840 --> 00:11:54,360 Speaker 1: another thing for the host themselves to be adopting those 152 00:11:54,360 --> 00:11:59,160 Speaker 1: claims and reinforcing them and affirming them. And it's also 153 00:11:59,200 --> 00:12:02,880 Speaker 1: another thing for those guests who are being brought onto 154 00:12:02,960 --> 00:12:07,160 Speaker 1: the show are guests who are known to be of 155 00:12:07,280 --> 00:12:12,520 Speaker 1: questionable character and reliability, which is another thing that the 156 00:12:12,600 --> 00:12:16,679 Speaker 1: evidence in this case is already demonstrated, So a summary 157 00:12:16,760 --> 00:12:19,760 Speaker 1: judgment motion by a plaintiff in a case like this 158 00:12:19,880 --> 00:12:24,559 Speaker 1: is highly unusual. Despite all the evidence that dominion has 159 00:12:24,559 --> 00:12:27,680 Speaker 1: put forth, do you think the judge would be reluctant 160 00:12:27,760 --> 00:12:32,640 Speaker 1: to grant a summary judgment motion. Summary judgment motions really 161 00:12:32,679 --> 00:12:36,839 Speaker 1: turn on whether or not there is a genuine material 162 00:12:36,920 --> 00:12:41,360 Speaker 1: issue of disputed fact, and so it's up to the 163 00:12:41,440 --> 00:12:47,040 Speaker 1: judge to decide whether that situation exists. If it does, 164 00:12:47,640 --> 00:12:50,480 Speaker 1: then the case should go to the jury. If the 165 00:12:50,559 --> 00:12:54,760 Speaker 1: judge conclude that there aren't any genuine disputed facts that 166 00:12:54,840 --> 00:12:59,320 Speaker 1: are relevant to how the case ought to be decided, 167 00:13:00,000 --> 00:13:04,040 Speaker 1: and that judge ought to grant the summary judgment motion 168 00:13:04,160 --> 00:13:06,480 Speaker 1: and save everybody at the time and trouble of going 169 00:13:06,520 --> 00:13:09,600 Speaker 1: to dry the damages in this case. Fox said that 170 00:13:09,640 --> 00:13:15,600 Speaker 1: the damages are far more than what dominions worth. They 171 00:13:15,640 --> 00:13:19,320 Speaker 1: have said that, and interestingly they said it on the 172 00:13:19,400 --> 00:13:25,560 Speaker 1: same day that Dominion's summary judgment motion was publicly released, 173 00:13:26,120 --> 00:13:29,760 Speaker 1: and so I think that that was largely a pr offensive. 174 00:13:30,520 --> 00:13:35,400 Speaker 1: It was undoubtedly intended to distract attention away from what 175 00:13:35,600 --> 00:13:39,040 Speaker 1: the evidence in the case showed. But you know, I 176 00:13:39,080 --> 00:13:43,000 Speaker 1: don't think it was particularly effective, and I don't think 177 00:13:43,040 --> 00:13:48,680 Speaker 1: it's necessarily relevant, frankly, because what dominion is worth is 178 00:13:48,720 --> 00:13:52,520 Speaker 1: not really the issue in the case. The issue in 179 00:13:52,559 --> 00:13:56,760 Speaker 1: the case. From a damage's standpoint, as I see it 180 00:13:56,800 --> 00:14:01,000 Speaker 1: is what is the nature of the on going damage 181 00:14:01,080 --> 00:14:05,280 Speaker 1: that Dominion will suffer in the future as a result 182 00:14:05,400 --> 00:14:11,440 Speaker 1: of the conduct by Fox, And that damage is measured 183 00:14:11,520 --> 00:14:17,280 Speaker 1: by who will enter into contracts with Dominion, who is 184 00:14:17,320 --> 00:14:22,640 Speaker 1: already contractually involved with Dominion, but who now are concerned 185 00:14:23,160 --> 00:14:29,120 Speaker 1: about whether Dominion's conduct is appropriate or not. And Foxes 186 00:14:29,200 --> 00:14:33,720 Speaker 1: paper sort of deliberately dance around that question. The question 187 00:14:33,920 --> 00:14:38,080 Speaker 1: of how dominions image will be damaged in the future 188 00:14:38,480 --> 00:14:44,200 Speaker 1: by these allegations, one point eight billion does seem high, though, yeah, 189 00:14:44,320 --> 00:14:47,720 Speaker 1: well it is high. But on the other hand, you know, 190 00:14:48,600 --> 00:14:54,760 Speaker 1: Fox is not a small player, and given that both 191 00:14:55,080 --> 00:14:59,880 Speaker 1: Fox the Fox News network as well as Fox Corp. 192 00:15:00,200 --> 00:15:06,600 Speaker 1: The parent, are defendants, you know it's not necessarily a 193 00:15:06,680 --> 00:15:13,680 Speaker 1: number that would bankrupt the company by any means. And certainly, 194 00:15:13,840 --> 00:15:19,720 Speaker 1: if there were either an adversary judgment ruling or or 195 00:15:19,760 --> 00:15:23,800 Speaker 1: a jury trial verdict that was anywhere close to that, 196 00:15:25,360 --> 00:15:29,800 Speaker 1: I'm quite sure that Fox would be capable of bonding, 197 00:15:29,960 --> 00:15:35,640 Speaker 1: as it would need to around that judgment, allowing them 198 00:15:35,680 --> 00:15:40,400 Speaker 1: and thereby allowing them to appeal it and at least 199 00:15:40,400 --> 00:15:44,600 Speaker 1: postpone for some significant period of time an ultimate day 200 00:15:44,600 --> 00:15:48,280 Speaker 1: of reckoning. So to sum up, tell us how strong 201 00:15:48,360 --> 00:15:53,320 Speaker 1: you think this dominion motion for summary judgment is. I 202 00:15:53,400 --> 00:15:57,800 Speaker 1: think Dominion's motion is both likely to succeed and likely 203 00:15:57,880 --> 00:16:02,480 Speaker 1: to be a landmark in defamation law in the United States. 204 00:16:02,840 --> 00:16:07,120 Speaker 1: The fact is that it is exceedingly rare to have 205 00:16:07,320 --> 00:16:10,680 Speaker 1: the kind of evidence that Dominion has been able to 206 00:16:10,720 --> 00:16:16,760 Speaker 1: accumulate that shows knowledge of falsity and certainly reckless disregard 207 00:16:16,920 --> 00:16:20,800 Speaker 1: for the truth on the part of a news organization 208 00:16:21,120 --> 00:16:28,000 Speaker 1: that has built its reputation upon effectively lying to its viewers. 209 00:16:28,080 --> 00:16:33,160 Speaker 1: And so this, I think is perhaps one of the 210 00:16:33,280 --> 00:16:38,680 Speaker 1: few cases where the standards that are applicable to the 211 00:16:38,720 --> 00:16:44,760 Speaker 1: defamation of public figures, which are and are appropriately extraordinarily high, 212 00:16:45,120 --> 00:16:47,640 Speaker 1: will be met. Thanks for being on the show, Doug, 213 00:16:48,120 --> 00:16:53,920 Speaker 1: that's Douglas Morrell a partner Greenberg Gloscer. The prosecution has 214 00:16:53,960 --> 00:16:56,720 Speaker 1: made a change in its case against Alec Baldwin for 215 00:16:56,800 --> 00:16:59,600 Speaker 1: a fatal shooting on the New Mexico film set of 216 00:16:59,600 --> 00:17:04,440 Speaker 1: The West Rust. Prosecutors have dropped the firearm enhancement, which 217 00:17:04,520 --> 00:17:08,640 Speaker 1: carried a mandatory five years in prison. Baldwin still faces 218 00:17:08,720 --> 00:17:13,240 Speaker 1: involuntary manslaughter charges with a possible eighteen month prison sentence. 219 00:17:13,680 --> 00:17:17,120 Speaker 1: Baldwin has maintained that he's not responsible for the shooting 220 00:17:17,119 --> 00:17:21,960 Speaker 1: of the film. Cinematographer joining me is former prosecutor Joshua Kastenberg, 221 00:17:22,040 --> 00:17:24,919 Speaker 1: a professor at the University of New Mexico Law School. 222 00:17:25,680 --> 00:17:30,280 Speaker 1: Why did the prosecutor drop the firearms enhancement Explain why 223 00:17:30,280 --> 00:17:36,399 Speaker 1: the prosecutor dropped the firearms enhancement charge. The enhanceance law 224 00:17:36,640 --> 00:17:40,760 Speaker 1: came into a fact after the alleged crime occurs, and 225 00:17:40,800 --> 00:17:45,120 Speaker 1: there's a basic constitutional principle that you cannot be charged 226 00:17:45,119 --> 00:17:48,280 Speaker 1: with an ex post facto crime that's the Latin term 227 00:17:48,359 --> 00:17:51,880 Speaker 1: for making something illegal after the fact. And I think, 228 00:17:52,000 --> 00:17:55,159 Speaker 1: basically my sense of what happened is the decision to 229 00:17:55,359 --> 00:17:58,760 Speaker 1: do that enhancement was probably done in the hopes of 230 00:17:58,840 --> 00:18:02,480 Speaker 1: either getting a place or in ignorance of when the 231 00:18:02,600 --> 00:18:06,680 Speaker 1: law came into effect, which is somewhat surprising because prosecutors 232 00:18:06,760 --> 00:18:09,680 Speaker 1: ought to be attuned into when a law comes into being. 233 00:18:09,800 --> 00:18:13,240 Speaker 1: Usually there's an update that occurred. So I think it's 234 00:18:13,280 --> 00:18:16,240 Speaker 1: one of those things that the prosecutor had the eye 235 00:18:16,280 --> 00:18:19,720 Speaker 1: on the ultimate conviction or on a plea deal, rather 236 00:18:19,800 --> 00:18:24,040 Speaker 1: than is this charge the right charge to go forward 237 00:18:24,119 --> 00:18:26,520 Speaker 1: on in every respect. I mean, it may have been 238 00:18:26,560 --> 00:18:28,920 Speaker 1: the right charge to go forward on if it had 239 00:18:28,960 --> 00:18:32,400 Speaker 1: become a law years earlier, but that's not the case here. 240 00:18:32,400 --> 00:18:36,000 Speaker 1: In a statement, the DA spokeswoman said the decision to 241 00:18:36,080 --> 00:18:38,959 Speaker 1: drop the firearm enhancement was made in order to avoid 242 00:18:39,040 --> 00:18:43,159 Speaker 1: further litigious distractions by mister Baldwin and his attorneys. Quote. 243 00:18:43,359 --> 00:18:48,280 Speaker 1: The prosecution's priority is securing justice, not securing billable hours 244 00:18:48,320 --> 00:18:52,120 Speaker 1: for big city attorneys. Two points about that. First, she's 245 00:18:52,160 --> 00:18:54,880 Speaker 1: not admitting she made a mistake, and you don't usually 246 00:18:54,920 --> 00:18:59,800 Speaker 1: see such snarky statements from prosecutors, right so into your 247 00:18:59,800 --> 00:19:03,000 Speaker 1: first point. I was a career prosecutor, but in a 248 00:19:03,000 --> 00:19:07,040 Speaker 1: different jurisdiction. I'm surprised when a prosecutor makes a statement 249 00:19:07,119 --> 00:19:10,640 Speaker 1: like that. You know, sometimes being a prosecutor, like being 250 00:19:10,680 --> 00:19:13,600 Speaker 1: a judge, means you're also a punching bag that does 251 00:19:13,640 --> 00:19:17,080 Speaker 1: not punched back. In this case, the defense council have 252 00:19:17,240 --> 00:19:21,440 Speaker 1: been acting somewhat unusually. They've been restrained because in many 253 00:19:21,520 --> 00:19:25,320 Speaker 1: high profile cases, the defense council go after the prosecutor. 254 00:19:25,760 --> 00:19:28,840 Speaker 1: This is not one of those cases. So I too, 255 00:19:29,320 --> 00:19:33,080 Speaker 1: I'm very surprised at that comment. The second thing I 256 00:19:33,080 --> 00:19:36,880 Speaker 1: would say is, you know, I believe that there's enough 257 00:19:36,920 --> 00:19:41,040 Speaker 1: evidence to go forward on the charge that remains. And 258 00:19:41,080 --> 00:19:44,399 Speaker 1: having said that, what's wrong with just confessing error to 259 00:19:44,480 --> 00:19:47,480 Speaker 1: the public and saying, look, we made a mistake, we 260 00:19:47,560 --> 00:19:49,960 Speaker 1: made a mistake in the way we charge this case. 261 00:19:50,520 --> 00:19:53,360 Speaker 1: We have an interest in doing justice, and doing justice 262 00:19:53,440 --> 00:19:58,120 Speaker 1: means also safeguarding the constitutional rights of the defendant. That's 263 00:19:58,160 --> 00:20:00,760 Speaker 1: not an original comment of mine. Back to the United 264 00:20:00,800 --> 00:20:03,959 Speaker 1: States Supreme Court said that in a case called Burger 265 00:20:04,040 --> 00:20:07,240 Speaker 1: versus the United States back in nineteen thirty five. And 266 00:20:07,480 --> 00:20:11,040 Speaker 1: so I'm surprised, rather than confess and error, say we 267 00:20:11,119 --> 00:20:14,400 Speaker 1: made a mistake of going on the offensive in that manner. 268 00:20:15,080 --> 00:20:18,439 Speaker 1: How big a win is this for Alec balwin that 269 00:20:18,520 --> 00:20:21,960 Speaker 1: this charge was dropped. Well, here's the thing. It's that 270 00:20:22,119 --> 00:20:24,520 Speaker 1: a court win and the sense that it shouldn't have 271 00:20:24,560 --> 00:20:29,280 Speaker 1: gone forward anyway. And my sense is that the judge, 272 00:20:29,680 --> 00:20:33,359 Speaker 1: had the prosecutor not cautious, had the defense not raised 273 00:20:33,400 --> 00:20:36,639 Speaker 1: the issue, the trial judge likely would have raised the 274 00:20:36,760 --> 00:20:40,320 Speaker 1: issue and then it would approved disasters for the prosecutor 275 00:20:40,359 --> 00:20:43,800 Speaker 1: at that point. But what it does, it's an emotional 276 00:20:43,840 --> 00:20:48,480 Speaker 1: win because the general public might be inclined to think, Look, 277 00:20:48,560 --> 00:20:52,280 Speaker 1: if the prosecutor can't get it right at this early 278 00:20:52,359 --> 00:20:55,639 Speaker 1: stage of the trial, what else should we believe about 279 00:20:55,680 --> 00:21:00,359 Speaker 1: this case? Does it change the trajectory of the case. No, 280 00:21:00,480 --> 00:21:02,760 Speaker 1: I don't think it changes the trajectory of the case 281 00:21:02,800 --> 00:21:06,080 Speaker 1: in the sense that both sides gets a void dear 282 00:21:06,160 --> 00:21:09,760 Speaker 1: a jury and in theory, the twelve jurors and the 283 00:21:09,800 --> 00:21:13,200 Speaker 1: alternates that are chosen should have very little knowledge about 284 00:21:13,320 --> 00:21:15,840 Speaker 1: the case to begin with. The jury is not going 285 00:21:15,920 --> 00:21:19,320 Speaker 1: to know that there was a charge that was dropped. 286 00:21:19,320 --> 00:21:22,240 Speaker 1: They're only going to know the charges that are confronting 287 00:21:22,240 --> 00:21:26,000 Speaker 1: mister Baldwin when and if this goes to trial, So 288 00:21:26,040 --> 00:21:28,840 Speaker 1: it doesn't change the trajectory of the case. On the 289 00:21:28,840 --> 00:21:32,920 Speaker 1: other hand, it might actually make the case more simple 290 00:21:33,000 --> 00:21:35,600 Speaker 1: for both sides. And what I mean by that is 291 00:21:36,119 --> 00:21:39,399 Speaker 1: this is a case at its root of criminal negligence, 292 00:21:39,720 --> 00:21:43,440 Speaker 1: and the jury doesn't have to be distracted by more 293 00:21:43,480 --> 00:21:47,439 Speaker 1: than one theory of a charge or multiple charges that 294 00:21:47,520 --> 00:21:50,440 Speaker 1: they have to decide between. Now they're simply deciding on 295 00:21:50,440 --> 00:21:52,720 Speaker 1: one charge. And what is the procect you to have 296 00:21:52,800 --> 00:21:55,520 Speaker 1: to prove to make out that charge? Well, I have 297 00:21:55,680 --> 00:21:59,800 Speaker 1: to prove that an ordinary prudent adult would have X 298 00:22:00,160 --> 00:22:05,679 Speaker 1: size caution and circumspection before pointing the weapon and firing it. 299 00:22:06,280 --> 00:22:09,840 Speaker 1: That mister Baldwin's conduct was so far out of the 300 00:22:09,960 --> 00:22:13,320 Speaker 1: norm that an exceed an ordinary negligence. If you think 301 00:22:13,359 --> 00:22:16,880 Speaker 1: of ordinary negligence, you and I are playing football. We're 302 00:22:16,880 --> 00:22:19,480 Speaker 1: playing catch with a football on a crowded beach. We 303 00:22:19,600 --> 00:22:22,320 Speaker 1: probably shouldn't do it, but so far we haven't hit 304 00:22:22,480 --> 00:22:25,159 Speaker 1: anybody with the football. We've been playing a game of catching, 305 00:22:25,200 --> 00:22:28,040 Speaker 1: and all of a sudden we hit a beachgoer who's 306 00:22:28,080 --> 00:22:31,680 Speaker 1: not aware with the football as an accident. That's ordinary negligence. 307 00:22:31,720 --> 00:22:34,760 Speaker 1: People commit ordinary negligence which could end up in a 308 00:22:34,800 --> 00:22:37,920 Speaker 1: civil court, but they committed every day they bump into 309 00:22:37,960 --> 00:22:41,120 Speaker 1: each other on the sidewalk, you know, they feed on 310 00:22:41,160 --> 00:22:44,840 Speaker 1: the freeway a little bit, not too far above the norm, 311 00:22:44,880 --> 00:22:48,440 Speaker 1: and they get into an accident. Culpable negligence, which is 312 00:22:48,480 --> 00:22:51,160 Speaker 1: the type of negligence that you see in criminal trials 313 00:22:51,160 --> 00:22:54,040 Speaker 1: as a higher burden of proof, and that means that 314 00:22:54,200 --> 00:22:58,399 Speaker 1: an individualist is acting in a risky manner and that 315 00:22:58,520 --> 00:23:01,920 Speaker 1: the end result would be or seeable by an ordinary 316 00:23:01,960 --> 00:23:05,240 Speaker 1: adult of ordinary intelligence and So what the jury is 317 00:23:05,280 --> 00:23:08,640 Speaker 1: going to have to figure out is, did mister Baldwin 318 00:23:08,720 --> 00:23:11,680 Speaker 1: have a duty to independently inspect the gun or in 319 00:23:11,800 --> 00:23:15,720 Speaker 1: some other means make sure it was secured or safeguarded, 320 00:23:16,160 --> 00:23:19,680 Speaker 1: not having live ammunition and not pointing it at an 321 00:23:19,720 --> 00:23:23,280 Speaker 1: individual before firing, you know, having failed to do that. 322 00:23:23,640 --> 00:23:26,280 Speaker 1: And so the jury's going to have to conclude business 323 00:23:26,400 --> 00:23:30,680 Speaker 1: ordinary negligence or was there a heightened duty. Now here's 324 00:23:30,680 --> 00:23:34,359 Speaker 1: the thing with firearms, Unlike walking on the sidewalk, playing 325 00:23:34,400 --> 00:23:37,359 Speaker 1: football on the beach, you know, even driving a car, 326 00:23:38,320 --> 00:23:42,400 Speaker 1: firearms safety isn't a different heightened category. And the prosecutor 327 00:23:42,440 --> 00:23:45,560 Speaker 1: can argue that, the prosecutor can argue that anybody who 328 00:23:45,600 --> 00:23:49,200 Speaker 1: holds the gun has an extra duty of making sure 329 00:23:49,240 --> 00:23:51,960 Speaker 1: they're doing it in a safe manner, and that's fundamentally 330 00:23:52,040 --> 00:23:55,320 Speaker 1: different than you know, an ordinary day to day activity 331 00:23:55,359 --> 00:23:58,119 Speaker 1: of an adult. Then the jury decides whether and just 332 00:23:58,280 --> 00:24:02,760 Speaker 1: this criminal or not. Baldwin continues to insist that while 333 00:24:02,800 --> 00:24:05,240 Speaker 1: he pulled back the hammer on the weapon, he never 334 00:24:05,280 --> 00:24:09,200 Speaker 1: pulled the trigger and apparently the weapon has been tested 335 00:24:09,240 --> 00:24:11,880 Speaker 1: by the FBI, and there's nothing wrong with the weapon. 336 00:24:12,240 --> 00:24:14,879 Speaker 1: If he holds to that, is that an uphill battle 337 00:24:14,920 --> 00:24:19,359 Speaker 1: for him. Well, so I think two points on that. 338 00:24:19,680 --> 00:24:23,359 Speaker 1: One is, you know, the FBI and their crime lab, 339 00:24:23,400 --> 00:24:27,639 Speaker 1: their experts, that's the platinum standard. And I don't know, 340 00:24:27,760 --> 00:24:30,240 Speaker 1: off the top of my head of a better and 341 00:24:30,320 --> 00:24:35,000 Speaker 1: more professional group of individuals than those who work at 342 00:24:35,040 --> 00:24:37,679 Speaker 1: the FBI. Have no idea who handled the weapon at 343 00:24:37,720 --> 00:24:40,919 Speaker 1: the FBI, But the FBI is the top of the 344 00:24:41,000 --> 00:24:44,000 Speaker 1: line in doing this kind of thing. Having said that, 345 00:24:44,800 --> 00:24:48,760 Speaker 1: mister Baldwin may very well believe that he didn't pull 346 00:24:48,840 --> 00:24:51,480 Speaker 1: the trigger and he pulled back the hammer. Human memory 347 00:24:51,600 --> 00:24:55,399 Speaker 1: is fallible. That's why, for example, when a number of 348 00:24:55,400 --> 00:24:58,159 Speaker 1: people see a plane accident who are on the ground, 349 00:24:58,800 --> 00:25:02,280 Speaker 1: the National Transportation Safety Board, when they investigate that accident, 350 00:25:02,359 --> 00:25:06,520 Speaker 1: they don't really take into account eyewitness statement with any 351 00:25:06,520 --> 00:25:09,639 Speaker 1: degree of certainty, because invariably one witness will say the 352 00:25:09,640 --> 00:25:12,080 Speaker 1: tail flew off first, and other I'll say the engines 353 00:25:12,160 --> 00:25:14,639 Speaker 1: dropped off the plane, and a thirdle say it blew up. 354 00:25:14,840 --> 00:25:18,080 Speaker 1: You know, It's how the brain receives information, stores it, 355 00:25:18,119 --> 00:25:20,520 Speaker 1: and processes memory, and it doesn't do a very good 356 00:25:20,600 --> 00:25:24,320 Speaker 1: job of it in stressful conditions. So I think you know, 357 00:25:24,320 --> 00:25:27,840 Speaker 1: in mister Baldwin's mind, the public ought to consider that 358 00:25:27,880 --> 00:25:31,560 Speaker 1: he believes he's telling the truth. The scientific and engineering 359 00:25:31,600 --> 00:25:34,600 Speaker 1: the stem data from the FBI crime lab may very 360 00:25:34,640 --> 00:25:38,320 Speaker 1: well rebut what he believes. The only way normally to 361 00:25:38,440 --> 00:25:41,440 Speaker 1: get his belief to a jury is for him to testify, 362 00:25:41,720 --> 00:25:44,680 Speaker 1: unless the prosecution gets it in, you know, for some 363 00:25:44,720 --> 00:25:47,720 Speaker 1: odd reason they open the door for it. So it 364 00:25:47,840 --> 00:25:51,080 Speaker 1: can come down to this, the experts at the crime 365 00:25:51,160 --> 00:25:54,960 Speaker 1: lab versus the witness, and that's not unheard of in 366 00:25:55,000 --> 00:26:03,040 Speaker 1: criminal trials. The Dad Hutchins widower to a list of 367 00:26:03,080 --> 00:26:06,440 Speaker 1: forty six witnesses. What does that indicate to you? But 368 00:26:06,600 --> 00:26:10,040 Speaker 1: they're still building their case and if a statement was 369 00:26:10,200 --> 00:26:14,520 Speaker 1: made by the deceased for it to be admitted into evidence. 370 00:26:14,600 --> 00:26:17,240 Speaker 1: So there's a rule of evidence that if a witness 371 00:26:17,280 --> 00:26:20,880 Speaker 1: is unavailable because they've died or they can't be reached, 372 00:26:20,920 --> 00:26:23,639 Speaker 1: then their statement may be admissible through a third party. 373 00:26:23,680 --> 00:26:27,320 Speaker 1: The courts are pretty tough on not letting hearsay evidence 374 00:26:27,440 --> 00:26:30,080 Speaker 1: come in. And this Hutchins made a statement and she 375 00:26:30,160 --> 00:26:32,480 Speaker 1: were alive and someone else tried to get it in, 376 00:26:32,600 --> 00:26:35,199 Speaker 1: more often than not it would be hearsay. So my 377 00:26:35,400 --> 00:26:39,240 Speaker 1: sense is that the prosecutor has something that Hutchins said 378 00:26:39,440 --> 00:26:41,760 Speaker 1: that they want to get into evidence and the only 379 00:26:41,800 --> 00:26:44,080 Speaker 1: way to do it is through the person who she 380 00:26:44,160 --> 00:26:48,080 Speaker 1: said it too. There are so many civil lawsuits involved here. 381 00:26:48,280 --> 00:26:51,280 Speaker 1: Do any of those impinge in any way on the 382 00:26:51,359 --> 00:26:56,600 Speaker 1: criminal proceedings? No? Actually, normally, civil lawsuits are held in 383 00:26:56,720 --> 00:27:00,440 Speaker 1: a bayand until a criminal proceeding is done, and attutes 384 00:27:00,440 --> 00:27:04,080 Speaker 1: of limitations on tort suits do not exhaust if they've 385 00:27:04,119 --> 00:27:07,240 Speaker 1: been held in abeyance because of an appending criminal trial. 386 00:27:07,480 --> 00:27:10,800 Speaker 1: And the reason for that is so that civil lawsuits 387 00:27:10,840 --> 00:27:14,119 Speaker 1: do not impinge on a criminal suit. Now, with the 388 00:27:14,200 --> 00:27:18,439 Speaker 1: civil lawsuits, my understanding as depositions may have already been taken, 389 00:27:18,840 --> 00:27:23,000 Speaker 1: interrogatories may have already been accomplished, and so witnesses may 390 00:27:23,040 --> 00:27:26,240 Speaker 1: have already said things that could be used against them 391 00:27:26,440 --> 00:27:30,160 Speaker 1: in a trial or could contradict testimony that they gave 392 00:27:30,200 --> 00:27:32,840 Speaker 1: in the criminal trial, and that puts everybody at rest. 393 00:27:33,240 --> 00:27:38,560 Speaker 1: The Bollwing team is trying to remove the DA from 394 00:27:38,600 --> 00:27:42,960 Speaker 1: the criminal case because she's also an elected New Mexico legislator. 395 00:27:43,160 --> 00:27:46,920 Speaker 1: Does that have legs? You think that is a possibility. Well, 396 00:27:47,280 --> 00:27:50,920 Speaker 1: if the unique argument, it is not by any stretch 397 00:27:51,240 --> 00:27:55,880 Speaker 1: a frivolous argument. It's rooted in the state constitution. It's 398 00:27:55,960 --> 00:27:59,480 Speaker 1: never been brought up as an issue before the courts before. 399 00:28:00,040 --> 00:28:02,840 Speaker 1: We have a part time legislature in New Mexico, so 400 00:28:02,880 --> 00:28:05,640 Speaker 1: it makes it somewhat different than the United States Congress 401 00:28:05,760 --> 00:28:09,200 Speaker 1: and a certain sizable fraction of our legislature our lawyers. 402 00:28:09,480 --> 00:28:12,960 Speaker 1: There was that decision issued by the US Supreme Court 403 00:28:13,040 --> 00:28:16,919 Speaker 1: in nineteen seventy four, making it an old decision about 404 00:28:16,960 --> 00:28:19,800 Speaker 1: the separation of powers and what the courts can and 405 00:28:19,920 --> 00:28:22,959 Speaker 1: can't roll on. That decision had to do with an 406 00:28:23,000 --> 00:28:26,639 Speaker 1: anti war group that was protesting the Vietnam War, latching 407 00:28:26,720 --> 00:28:30,080 Speaker 1: onto a really important provision in the United States Constitution, 408 00:28:30,160 --> 00:28:33,240 Speaker 1: which called the incompatibility Cause. But it basically stands for 409 00:28:33,480 --> 00:28:36,320 Speaker 1: the fact that members of Congress who are elected into 410 00:28:36,359 --> 00:28:40,120 Speaker 1: their office cannot hold executive positions. So you can't serve 411 00:28:40,160 --> 00:28:43,680 Speaker 1: in Congress and be a US ambassador to Russia at 412 00:28:43,680 --> 00:28:45,600 Speaker 1: the same time. You can do one or the other, 413 00:28:46,040 --> 00:28:48,920 Speaker 1: but an ambassador works for the president, and if your 414 00:28:48,960 --> 00:28:51,760 Speaker 1: people have elected you to Congress, you have to be 415 00:28:51,800 --> 00:28:54,840 Speaker 1: independent as a member of Congress. So in that nineteen 416 00:28:54,880 --> 00:28:58,720 Speaker 1: seventy four cases it perculated through the court. Almost every 417 00:28:58,840 --> 00:29:01,760 Speaker 1: judge that touched that case at the district Court, at 418 00:29:01,760 --> 00:29:04,040 Speaker 1: the Court of Appeals, and at the Supreme Court. The 419 00:29:04,120 --> 00:29:09,120 Speaker 1: justices agreed that congressman who held military commissions in the 420 00:29:09,240 --> 00:29:13,360 Speaker 1: reserves and in the National Guards were violating the incompatibility 421 00:29:13,400 --> 00:29:16,920 Speaker 1: clause because when they got called to duty, they were 422 00:29:16,920 --> 00:29:19,680 Speaker 1: in the chain of command of the sitting president and 423 00:29:19,720 --> 00:29:22,760 Speaker 1: therefore we're not independent members of Congress. But then the 424 00:29:22,800 --> 00:29:26,360 Speaker 1: Supreme Court ruled it's a political question, meaning that is 425 00:29:26,360 --> 00:29:30,440 Speaker 1: a decision that can only be answered by Congress itself 426 00:29:30,560 --> 00:29:34,080 Speaker 1: or by the voters. Now this case is somewhat different 427 00:29:34,280 --> 00:29:38,440 Speaker 1: because Alec Baldwin is affected directly, so we have standing 428 00:29:38,480 --> 00:29:41,200 Speaker 1: to bring this issue before the court. But then he 429 00:29:41,240 --> 00:29:44,320 Speaker 1: has to articulate a harm and what is the harm 430 00:29:44,520 --> 00:29:49,680 Speaker 1: to him personally that the special prosecutor the appointment of 431 00:29:49,760 --> 00:29:52,360 Speaker 1: the special prosecutor has to him? I mean, does he 432 00:29:52,440 --> 00:29:55,160 Speaker 1: have a right to choose who's prosecuting him and the 433 00:29:55,200 --> 00:29:57,160 Speaker 1: answers he does it. On the other hand, to the 434 00:29:57,200 --> 00:30:00,120 Speaker 1: people of New Mexico have a right to make sure 435 00:30:00,120 --> 00:30:02,640 Speaker 1: that the three branches of state government are doing their 436 00:30:02,720 --> 00:30:07,080 Speaker 1: jobs in abiding by the Constitution. I think, in a sense, 437 00:30:07,280 --> 00:30:11,040 Speaker 1: the Baldwin defense team has a right idea on the 438 00:30:11,040 --> 00:30:15,800 Speaker 1: state constitution. Having said that, I'm not confident at all 439 00:30:15,840 --> 00:30:19,600 Speaker 1: they'll prevail because they can't really articulate a harm to 440 00:30:19,720 --> 00:30:24,040 Speaker 1: mister Baldwin. Thank you so much. That's Professor Joshua Castenberg 441 00:30:24,080 --> 00:30:27,200 Speaker 1: of the University of New Mexico Law School. You're listening 442 00:30:27,200 --> 00:30:27,880 Speaker 1: to Bloomberg.