WEBVTT - Revealing Fox News Texts; Baldwin Charges Reduced 0:00:03.080 --> 0:00:08.320 You're listening to Bloomberg Law with June Grosso from Bloomberg Radio. 0:00:10.600 --> 0:00:14.360 To millions of viewers, Fox News hosts promoted Donald Trump's 0:00:14.400 --> 0:00:18.360 false theories about a stolen election, allowing his allies to 0:00:18.400 --> 0:00:22.079 spout those claims on their airwaves in prime time, but 0:00:22.200 --> 0:00:25.960 to one another, the host and top executives expressed doubts 0:00:25.960 --> 0:00:29.400 about the claims and mocked the people making them. As 0:00:29.480 --> 0:00:32.360 part of its one point eight billion dollar defamation suit 0:00:32.400 --> 0:00:37.120 against Fox, Dominion Voting Systems has revealed private communications of 0:00:37.200 --> 0:00:41.920 hosts like Tucker Carlson and Laura Ingraham and network bigwigs, 0:00:42.040 --> 0:00:47.120 including the chairman of Fox Corporation, Rupert Murdoch. Quote Sidney 0:00:47.120 --> 0:00:51.160 Powell is lying end quote. Carlson texted a producer about 0:00:51.200 --> 0:00:55.960 Trump's lawyer. Ingraham texted Carlson that Powell is quote a 0:00:56.080 --> 0:00:59.280 complete nut. No one will work with her. Here's that 0:00:59.400 --> 0:01:02.960 lawyer that Ingraham called a complete nut on her show. 0:01:03.560 --> 0:01:07.280 This is coup five point zero and in the Department 0:01:07.319 --> 0:01:10.120 of Justice and the FBI really need to get after 0:01:10.200 --> 0:01:13.679 it right now and investigate all the reports of fraud. 0:01:13.720 --> 0:01:17.399 There are hundreds of them. Well, I hope at Charney 0:01:17.440 --> 0:01:21.039 General Barr is doing that. Very very hopeful that he's 0:01:21.080 --> 0:01:23.280 doing that. Otherwise we're in big trouble as a country, 0:01:23.360 --> 0:01:26.319 especially with elections going forward. Joining me is Douglas Morrell, 0:01:26.440 --> 0:01:29.640 a partner at Greenberg Gloucesker. I want you to start 0:01:29.720 --> 0:01:35.000 by explaining Dominions claims. What are they alleging in this lawsuit? So, 0:01:35.080 --> 0:01:39.960 in its lawsuit against Fox, Dominion Voting Systems is essentially 0:01:40.040 --> 0:01:48.440 claiming that Fox knowingly published a series of statements by 0:01:48.720 --> 0:01:52.800 not only others, but by its own presenters, its own 0:01:52.840 --> 0:01:59.680 show hosts that falsely claimed that somehow Dominions voting machines 0:02:00.000 --> 0:02:03.920 were responsible for flipping votes or for changing the outcome 0:02:04.200 --> 0:02:08.440 of the twenty twenty presidential election. Obviously, a news organization 0:02:08.639 --> 0:02:11.720 is involved. So what does Dominion have to prove to 0:02:11.760 --> 0:02:17.160 make its case. So Dominion has acknowledged in this case 0:02:17.680 --> 0:02:21.520 that it is a public figure, and that has a 0:02:21.600 --> 0:02:26.240 significant effect upon what has to be proven in order 0:02:26.280 --> 0:02:30.440 to prevail in a defamation case. Specifically, because it's a 0:02:30.440 --> 0:02:34.360 public figure, it has to show that the statements that 0:02:34.400 --> 0:02:38.240 were aired by Fox were aired knowing them to be false, 0:02:38.760 --> 0:02:42.480 or were aired with reckless disregard for their truth, or falsity, 0:02:42.680 --> 0:02:47.600 and the evidence that Dominion has presented so far would 0:02:47.600 --> 0:02:52.600 seem to be one of those rare situations where that 0:02:53.160 --> 0:02:57.680 test can be met, and so the case may well 0:02:57.919 --> 0:03:01.960 be decided without the knee for a trial, or if 0:03:02.000 --> 0:03:04.639 it goes to trial, I think the evidence is very 0:03:04.680 --> 0:03:09.760 strong that that test that standard will be met. Is 0:03:09.800 --> 0:03:13.200 there a difference when a news organization is involved. The 0:03:13.360 --> 0:03:19.680 standard that applies to news organizations really isn't necessarily different 0:03:20.280 --> 0:03:24.840 from the standard that would apply in a regular individual 0:03:25.200 --> 0:03:29.440 defamation case. The fact, though, is that when you're dealing 0:03:29.480 --> 0:03:35.080 with a media defendant, the question of publication, which is 0:03:35.120 --> 0:03:39.120 an element of any defamation case, is usually a foregone conclusion. 0:03:39.520 --> 0:03:42.880 If we were talking about a situation where you and 0:03:42.920 --> 0:03:46.120 I were having a private conversation and I said nasty 0:03:46.200 --> 0:03:50.120 things about you, that would not be subject to a 0:03:50.160 --> 0:03:54.560 defamation claim because it hasn't been published to any third party. 0:03:54.960 --> 0:03:59.400 So whenever a media defendant is involved, by definition, there's 0:03:59.400 --> 0:04:02.160 been a publication and that element is taken care of, 0:04:02.720 --> 0:04:05.880 but all of the other elements of a defamation claim 0:04:05.920 --> 0:04:09.520 remain the same. In the papers supporting the motion for 0:04:09.760 --> 0:04:14.480 summary judgment, Dominion describes people from the top of the organization, 0:04:14.920 --> 0:04:18.920 on air hosts, people behind the camera discussing that these 0:04:18.960 --> 0:04:23.039 claims about a stolen election were false. Yeah. So what 0:04:23.240 --> 0:04:27.600 is interesting about the summary judgment papers that Dominion has 0:04:27.640 --> 0:04:32.760 filed is the nature and extent of the evidence that 0:04:32.800 --> 0:04:38.239 they've been able to accumulate through discovery and from Rupert 0:04:38.320 --> 0:04:44.040 Murdoch on down to the on air talent that Fox 0:04:44.360 --> 0:04:49.440 us and in some cases still uses. There are a 0:04:49.480 --> 0:04:58.400 wealth of emails, text messages and deposition testimony which seem 0:04:58.480 --> 0:05:02.920 to pretty clearly indicate that they knew that what was 0:05:02.960 --> 0:05:08.559 being broadcast and what they themselves were broadcasting were lies. 0:05:09.560 --> 0:05:14.599 And that is extraordinarily unusual to find in a case 0:05:14.960 --> 0:05:21.320 of defamation. You don't have the party accused essentially confessing 0:05:22.120 --> 0:05:26.520 that this is our modus operandi. And indeed, you know, 0:05:26.560 --> 0:05:29.839 what is now seems to be apparent is that lying 0:05:30.160 --> 0:05:35.279 was a part of Fox's business model, and that's because 0:05:35.760 --> 0:05:40.920 they were concerned that their viewers were being turned off 0:05:41.240 --> 0:05:44.960 by having them tell the truth about what occurred with 0:05:45.040 --> 0:05:48.760 respect to the twenty twenty election, and we're instead turning 0:05:48.760 --> 0:05:53.560 to other sources such as Newsmax. So is it enough 0:05:53.640 --> 0:05:56.880 that they lied? Does Dominion have to prove anything else. 0:05:57.279 --> 0:06:03.080 Dominion has to prove that knew that what was being 0:06:03.160 --> 0:06:07.880 broadcast were lots and the evidence that's been accumulated thus 0:06:07.960 --> 0:06:12.720 far would seem to pretty clearly show that there was 0:06:12.839 --> 0:06:16.800 that knowledge at a point in time when it was 0:06:16.920 --> 0:06:22.920 quite clear that Dominion had no culpability with respect to 0:06:23.640 --> 0:06:28.799 changing votes or hiding votes or manipulating vote. And what's 0:06:28.960 --> 0:06:32.800 unusual too about this case is that in an ordinary 0:06:32.880 --> 0:06:37.960 defamation lawsuit, you might have a single story where a 0:06:38.000 --> 0:06:42.760 statement made within that one story is found to be defamatory. 0:06:43.080 --> 0:06:49.039 Here you have an ongoing series of broadcast statements made 0:06:49.040 --> 0:06:53.640 by people who we now know knew that what they 0:06:53.680 --> 0:06:57.720 were saying was untruthful at the time they said it, 0:06:58.000 --> 0:07:01.640 and that there was not just one instance of this, 0:07:02.120 --> 0:07:06.520 but it occurred time and time again with multiple on 0:07:06.640 --> 0:07:10.680 air talent. Fox said the dominion filing mischaracterized the record 0:07:10.840 --> 0:07:14.840 Jerry pick quote, stripped of key context, and spilled considerable 0:07:14.920 --> 0:07:18.640 ink on facts that are irrelevant under black letter principles 0:07:18.680 --> 0:07:24.000 of defamation law. Is that possible, Well, let me say 0:07:24.000 --> 0:07:27.800 that none of us on the outside have a full 0:07:27.880 --> 0:07:32.720 record of everything that has been discovered during the course 0:07:32.760 --> 0:07:36.000 of this litigation, and indeed we may never have that. 0:07:36.560 --> 0:07:40.680 For example, the one hundred and ninety two page filing 0:07:41.240 --> 0:07:48.080 that Dominion presented is replete with blacked out information, so 0:07:48.720 --> 0:07:52.800 we don't even know the full extent of everything that 0:07:53.080 --> 0:07:57.280 Dominion knows, and it's not entirely clear to me why 0:07:57.960 --> 0:08:02.280 those redactions were made in this motion. The motion itself 0:08:02.400 --> 0:08:06.720 was withheld from public disclosure, was sealed when it was 0:08:06.760 --> 0:08:12.320 originally filed, and it was only subsequently publicly released, but 0:08:12.520 --> 0:08:15.800 released in a manner where we still don't know the 0:08:15.880 --> 0:08:19.760 full extent of everything that's been said. Now, it's possible 0:08:19.800 --> 0:08:23.640 that Fox is correct that there has been some selective 0:08:23.960 --> 0:08:29.600 editing or cherry picking of quotes, and that perhaps context 0:08:30.120 --> 0:08:33.560 needs to be flashed out, but that's a job that 0:08:33.679 --> 0:08:36.040 Fox is going to have to do on its own, 0:08:36.520 --> 0:08:41.079 and we will see whether they're able to put meat 0:08:41.320 --> 0:08:45.280 on the bones that it has presented. So Fox lawyers 0:08:45.440 --> 0:08:49.040 also claim that everything their anchors said was protected by 0:08:49.040 --> 0:08:54.880 the First Amendment, and argues that by covering Trump's fraud claims, 0:08:54.880 --> 0:08:58.880 the network was doing what any media organization would reporting 0:08:58.880 --> 0:09:03.640 and commenting on a matter of undeniable newsworthiness. So the 0:09:03.920 --> 0:09:09.920 newsworthiness defense, along with the fair and true report defense, 0:09:10.440 --> 0:09:14.640 along with the neutral reportage defense that Fox has raised 0:09:15.040 --> 0:09:20.840 in this case, have all been essentially, if not completely eviscerated, 0:09:21.360 --> 0:09:26.480 largely rendered moot by prior decisions of the court that 0:09:26.679 --> 0:09:32.320 refused to allow Fox to have the case dismissed before 0:09:32.400 --> 0:09:37.320 this point. And so those claims bring quite hollow in 0:09:37.440 --> 0:09:42.079 light of what the trial judge has already determined. And 0:09:42.320 --> 0:09:47.679 so Fox, I think is engaged in more of a 0:09:47.840 --> 0:09:53.120 pr offensive than it is in trying to convince the 0:09:53.200 --> 0:09:57.280 court that what it has already decided is wrong. That 0:09:57.480 --> 0:10:00.400 tell us what the judge has already decided the case. 0:10:00.880 --> 0:10:04.080 At an early stage in any case, you have the 0:10:04.120 --> 0:10:09.600 opportunity to challenge a lawsuit based exclusively upon what the 0:10:09.640 --> 0:10:12.640 pleadings in the case say, what the complaint that was 0:10:12.720 --> 0:10:16.480 filed said, and you do that by way of emotion 0:10:16.559 --> 0:10:22.120 to dismiss In this case, the complaint that Dominion filed 0:10:22.800 --> 0:10:28.040 was extraordinarily detailed. I don't recall how many hundreds of 0:10:28.080 --> 0:10:34.880 pages were filed, but it included lots of evidence that 0:10:35.480 --> 0:10:41.000 it had accumulated even without having access to text messages 0:10:41.080 --> 0:10:46.360 and emails and other material through deposition, it had access 0:10:46.440 --> 0:10:52.959 to information that when these broadcasters from Fox were making 0:10:53.000 --> 0:11:01.240 these claims, that the facts of Dominions non involved in 0:11:01.400 --> 0:11:06.520 any election rigging were absolutely clear, they had been investigated, 0:11:06.880 --> 0:11:11.440 they had been adjudicated in cases in which Dominion's conduct 0:11:11.559 --> 0:11:15.319 was put in issue, and it was known to the 0:11:15.360 --> 0:11:20.480 world that these claims about Dominions voting machines were false. 0:11:21.120 --> 0:11:26.920 But yet even after that had occurred, Fox posts continued 0:11:27.360 --> 0:11:32.120 to make these unfounded and in many cases outrageous claims 0:11:32.600 --> 0:11:38.640 about Dominion wholly without any acknowledgement of the fact that 0:11:39.280 --> 0:11:42.880 these were false. And you know, it's one thing for 0:11:43.160 --> 0:11:47.160 a guest on a show to make claims that one 0:11:47.240 --> 0:11:50.800 may not know are going to be false. It's quite 0:11:50.840 --> 0:11:54.360 another thing for the host themselves to be adopting those 0:11:54.360 --> 0:11:59.160 claims and reinforcing them and affirming them. And it's also 0:11:59.200 --> 0:12:02.880 another thing for those guests who are being brought onto 0:12:02.960 --> 0:12:07.160 the show are guests who are known to be of 0:12:07.280 --> 0:12:12.520 questionable character and reliability, which is another thing that the 0:12:12.600 --> 0:12:16.679 evidence in this case is already demonstrated, So a summary 0:12:16.760 --> 0:12:19.760 judgment motion by a plaintiff in a case like this 0:12:19.880 --> 0:12:24.559 is highly unusual. Despite all the evidence that dominion has 0:12:24.559 --> 0:12:27.680 put forth, do you think the judge would be reluctant 0:12:27.760 --> 0:12:32.640 to grant a summary judgment motion. Summary judgment motions really 0:12:32.679 --> 0:12:36.839 turn on whether or not there is a genuine material 0:12:36.920 --> 0:12:41.360 issue of disputed fact, and so it's up to the 0:12:41.440 --> 0:12:47.040 judge to decide whether that situation exists. If it does, 0:12:47.640 --> 0:12:50.480 then the case should go to the jury. If the 0:12:50.559 --> 0:12:54.760 judge conclude that there aren't any genuine disputed facts that 0:12:54.840 --> 0:12:59.320 are relevant to how the case ought to be decided, 0:13:00.000 --> 0:13:04.040 and that judge ought to grant the summary judgment motion 0:13:04.160 --> 0:13:06.480 and save everybody at the time and trouble of going 0:13:06.520 --> 0:13:09.600 to dry the damages in this case. Fox said that 0:13:09.640 --> 0:13:15.600 the damages are far more than what dominions worth. They 0:13:15.640 --> 0:13:19.320 have said that, and interestingly they said it on the 0:13:19.400 --> 0:13:25.560 same day that Dominion's summary judgment motion was publicly released, 0:13:26.120 --> 0:13:29.760 and so I think that that was largely a pr offensive. 0:13:30.520 --> 0:13:35.400 It was undoubtedly intended to distract attention away from what 0:13:35.600 --> 0:13:39.040 the evidence in the case showed. But you know, I 0:13:39.080 --> 0:13:43.000 don't think it was particularly effective, and I don't think 0:13:43.040 --> 0:13:48.680 it's necessarily relevant, frankly, because what dominion is worth is 0:13:48.720 --> 0:13:52.520 not really the issue in the case. The issue in 0:13:52.559 --> 0:13:56.760 the case. From a damage's standpoint, as I see it 0:13:56.800 --> 0:14:01.000 is what is the nature of the on going damage 0:14:01.080 --> 0:14:05.280 that Dominion will suffer in the future as a result 0:14:05.400 --> 0:14:11.440 of the conduct by Fox, And that damage is measured 0:14:11.520 --> 0:14:17.280 by who will enter into contracts with Dominion, who is 0:14:17.320 --> 0:14:22.640 already contractually involved with Dominion, but who now are concerned 0:14:23.160 --> 0:14:29.120 about whether Dominion's conduct is appropriate or not. And Foxes 0:14:29.200 --> 0:14:33.720 paper sort of deliberately dance around that question. The question 0:14:33.920 --> 0:14:38.080 of how dominions image will be damaged in the future 0:14:38.480 --> 0:14:44.200 by these allegations, one point eight billion does seem high, though, yeah, 0:14:44.320 --> 0:14:47.720 well it is high. But on the other hand, you know, 0:14:48.600 --> 0:14:54.760 Fox is not a small player, and given that both 0:14:55.080 --> 0:14:59.880 Fox the Fox News network as well as Fox Corp. 0:15:00.200 --> 0:15:06.600 The parent, are defendants, you know it's not necessarily a 0:15:06.680 --> 0:15:13.680 number that would bankrupt the company by any means. And certainly, 0:15:13.840 --> 0:15:19.720 if there were either an adversary judgment ruling or or 0:15:19.760 --> 0:15:23.800 a jury trial verdict that was anywhere close to that, 0:15:25.360 --> 0:15:29.800 I'm quite sure that Fox would be capable of bonding, 0:15:29.960 --> 0:15:35.640 as it would need to around that judgment, allowing them 0:15:35.680 --> 0:15:40.400 and thereby allowing them to appeal it and at least 0:15:40.400 --> 0:15:44.600 postpone for some significant period of time an ultimate day 0:15:44.600 --> 0:15:48.280 of reckoning. So to sum up, tell us how strong 0:15:48.360 --> 0:15:53.320 you think this dominion motion for summary judgment is. I 0:15:53.400 --> 0:15:57.800 think Dominion's motion is both likely to succeed and likely 0:15:57.880 --> 0:16:02.480 to be a landmark in defamation law in the United States. 0:16:02.840 --> 0:16:07.120 The fact is that it is exceedingly rare to have 0:16:07.320 --> 0:16:10.680 the kind of evidence that Dominion has been able to 0:16:10.720 --> 0:16:16.760 accumulate that shows knowledge of falsity and certainly reckless disregard 0:16:16.920 --> 0:16:20.800 for the truth on the part of a news organization 0:16:21.120 --> 0:16:28.000 that has built its reputation upon effectively lying to its viewers. 0:16:28.080 --> 0:16:33.160 And so this, I think is perhaps one of the 0:16:33.280 --> 0:16:38.680 few cases where the standards that are applicable to the 0:16:38.720 --> 0:16:44.760 defamation of public figures, which are and are appropriately extraordinarily high, 0:16:45.120 --> 0:16:47.640 will be met. Thanks for being on the show, Doug, 0:16:48.120 --> 0:16:53.920 that's Douglas Morrell a partner Greenberg Gloscer. The prosecution has 0:16:53.960 --> 0:16:56.720 made a change in its case against Alec Baldwin for 0:16:56.800 --> 0:16:59.600 a fatal shooting on the New Mexico film set of 0:16:59.600 --> 0:17:04.440 The West Rust. Prosecutors have dropped the firearm enhancement, which 0:17:04.520 --> 0:17:08.640 carried a mandatory five years in prison. Baldwin still faces 0:17:08.720 --> 0:17:13.240 involuntary manslaughter charges with a possible eighteen month prison sentence. 0:17:13.680 --> 0:17:17.120 Baldwin has maintained that he's not responsible for the shooting 0:17:17.119 --> 0:17:21.960 of the film. Cinematographer joining me is former prosecutor Joshua Kastenberg, 0:17:22.040 --> 0:17:24.919 a professor at the University of New Mexico Law School. 0:17:25.680 --> 0:17:30.280 Why did the prosecutor drop the firearms enhancement Explain why 0:17:30.280 --> 0:17:36.399 the prosecutor dropped the firearms enhancement charge. The enhanceance law 0:17:36.640 --> 0:17:40.760 came into a fact after the alleged crime occurs, and 0:17:40.800 --> 0:17:45.120 there's a basic constitutional principle that you cannot be charged 0:17:45.119 --> 0:17:48.280 with an ex post facto crime that's the Latin term 0:17:48.359 --> 0:17:51.880 for making something illegal after the fact. And I think, 0:17:52.000 --> 0:17:55.159 basically my sense of what happened is the decision to 0:17:55.359 --> 0:17:58.760 do that enhancement was probably done in the hopes of 0:17:58.840 --> 0:18:02.480 either getting a place or in ignorance of when the 0:18:02.600 --> 0:18:06.680 law came into effect, which is somewhat surprising because prosecutors 0:18:06.760 --> 0:18:09.680 ought to be attuned into when a law comes into being. 0:18:09.800 --> 0:18:13.240 Usually there's an update that occurred. So I think it's 0:18:13.280 --> 0:18:16.240 one of those things that the prosecutor had the eye 0:18:16.280 --> 0:18:19.720 on the ultimate conviction or on a plea deal, rather 0:18:19.800 --> 0:18:24.040 than is this charge the right charge to go forward 0:18:24.119 --> 0:18:26.520 on in every respect. I mean, it may have been 0:18:26.560 --> 0:18:28.920 the right charge to go forward on if it had 0:18:28.960 --> 0:18:32.400 become a law years earlier, but that's not the case here. 0:18:32.400 --> 0:18:36.000 In a statement, the DA spokeswoman said the decision to 0:18:36.080 --> 0:18:38.959 drop the firearm enhancement was made in order to avoid 0:18:39.040 --> 0:18:43.159 further litigious distractions by mister Baldwin and his attorneys. Quote. 0:18:43.359 --> 0:18:48.280 The prosecution's priority is securing justice, not securing billable hours 0:18:48.320 --> 0:18:52.120 for big city attorneys. Two points about that. First, she's 0:18:52.160 --> 0:18:54.880 not admitting she made a mistake, and you don't usually 0:18:54.920 --> 0:18:59.800 see such snarky statements from prosecutors, right so into your 0:18:59.800 --> 0:19:03.000 first point. I was a career prosecutor, but in a 0:19:03.000 --> 0:19:07.040 different jurisdiction. I'm surprised when a prosecutor makes a statement 0:19:07.119 --> 0:19:10.640 like that. You know, sometimes being a prosecutor, like being 0:19:10.680 --> 0:19:13.600 a judge, means you're also a punching bag that does 0:19:13.640 --> 0:19:17.080 not punched back. In this case, the defense council have 0:19:17.240 --> 0:19:21.440 been acting somewhat unusually. They've been restrained because in many 0:19:21.520 --> 0:19:25.320 high profile cases, the defense council go after the prosecutor. 0:19:25.760 --> 0:19:28.840 This is not one of those cases. So I too, 0:19:29.320 --> 0:19:33.080 I'm very surprised at that comment. The second thing I 0:19:33.080 --> 0:19:36.880 would say is, you know, I believe that there's enough 0:19:36.920 --> 0:19:41.040 evidence to go forward on the charge that remains. And 0:19:41.080 --> 0:19:44.399 having said that, what's wrong with just confessing error to 0:19:44.480 --> 0:19:47.480 the public and saying, look, we made a mistake, we 0:19:47.560 --> 0:19:49.960 made a mistake in the way we charge this case. 0:19:50.520 --> 0:19:53.360 We have an interest in doing justice, and doing justice 0:19:53.440 --> 0:19:58.120 means also safeguarding the constitutional rights of the defendant. That's 0:19:58.160 --> 0:20:00.760 not an original comment of mine. Back to the United 0:20:00.800 --> 0:20:03.959 States Supreme Court said that in a case called Burger 0:20:04.040 --> 0:20:07.240 versus the United States back in nineteen thirty five. And 0:20:07.480 --> 0:20:11.040 so I'm surprised, rather than confess and error, say we 0:20:11.119 --> 0:20:14.400 made a mistake of going on the offensive in that manner. 0:20:15.080 --> 0:20:18.439 How big a win is this for Alec balwin that 0:20:18.520 --> 0:20:21.960 this charge was dropped. Well, here's the thing. It's that 0:20:22.119 --> 0:20:24.520 a court win and the sense that it shouldn't have 0:20:24.560 --> 0:20:29.280 gone forward anyway. And my sense is that the judge, 0:20:29.680 --> 0:20:33.359 had the prosecutor not cautious, had the defense not raised 0:20:33.400 --> 0:20:36.639 the issue, the trial judge likely would have raised the 0:20:36.760 --> 0:20:40.320 issue and then it would approved disasters for the prosecutor 0:20:40.359 --> 0:20:43.800 at that point. But what it does, it's an emotional 0:20:43.840 --> 0:20:48.480 win because the general public might be inclined to think, Look, 0:20:48.560 --> 0:20:52.280 if the prosecutor can't get it right at this early 0:20:52.359 --> 0:20:55.639 stage of the trial, what else should we believe about 0:20:55.680 --> 0:21:00.359 this case? Does it change the trajectory of the case. No, 0:21:00.480 --> 0:21:02.760 I don't think it changes the trajectory of the case 0:21:02.800 --> 0:21:06.080 in the sense that both sides gets a void dear 0:21:06.160 --> 0:21:09.760 a jury and in theory, the twelve jurors and the 0:21:09.800 --> 0:21:13.200 alternates that are chosen should have very little knowledge about 0:21:13.320 --> 0:21:15.840 the case to begin with. The jury is not going 0:21:15.920 --> 0:21:19.320 to know that there was a charge that was dropped. 0:21:19.320 --> 0:21:22.240 They're only going to know the charges that are confronting 0:21:22.240 --> 0:21:26.000 mister Baldwin when and if this goes to trial, So 0:21:26.040 --> 0:21:28.840 it doesn't change the trajectory of the case. On the 0:21:28.840 --> 0:21:32.920 other hand, it might actually make the case more simple 0:21:33.000 --> 0:21:35.600 for both sides. And what I mean by that is 0:21:36.119 --> 0:21:39.399 this is a case at its root of criminal negligence, 0:21:39.720 --> 0:21:43.440 and the jury doesn't have to be distracted by more 0:21:43.480 --> 0:21:47.439 than one theory of a charge or multiple charges that 0:21:47.520 --> 0:21:50.440 they have to decide between. Now they're simply deciding on 0:21:50.440 --> 0:21:52.720 one charge. And what is the procect you to have 0:21:52.800 --> 0:21:55.520 to prove to make out that charge? Well, I have 0:21:55.680 --> 0:21:59.800 to prove that an ordinary prudent adult would have X 0:22:00.160 --> 0:22:05.679 size caution and circumspection before pointing the weapon and firing it. 0:22:06.280 --> 0:22:09.840 That mister Baldwin's conduct was so far out of the 0:22:09.960 --> 0:22:13.320 norm that an exceed an ordinary negligence. If you think 0:22:13.359 --> 0:22:16.880 of ordinary negligence, you and I are playing football. We're 0:22:16.880 --> 0:22:19.480 playing catch with a football on a crowded beach. We 0:22:19.600 --> 0:22:22.320 probably shouldn't do it, but so far we haven't hit 0:22:22.480 --> 0:22:25.159 anybody with the football. We've been playing a game of catching, 0:22:25.200 --> 0:22:28.040 and all of a sudden we hit a beachgoer who's 0:22:28.080 --> 0:22:31.680 not aware with the football as an accident. That's ordinary negligence. 0:22:31.720 --> 0:22:34.760 People commit ordinary negligence which could end up in a 0:22:34.800 --> 0:22:37.920 civil court, but they committed every day they bump into 0:22:37.960 --> 0:22:41.120 each other on the sidewalk, you know, they feed on 0:22:41.160 --> 0:22:44.840 the freeway a little bit, not too far above the norm, 0:22:44.880 --> 0:22:48.440 and they get into an accident. Culpable negligence, which is 0:22:48.480 --> 0:22:51.160 the type of negligence that you see in criminal trials 0:22:51.160 --> 0:22:54.040 as a higher burden of proof, and that means that 0:22:54.200 --> 0:22:58.399 an individualist is acting in a risky manner and that 0:22:58.520 --> 0:23:01.920 the end result would be or seeable by an ordinary 0:23:01.960 --> 0:23:05.240 adult of ordinary intelligence and So what the jury is 0:23:05.280 --> 0:23:08.640 going to have to figure out is, did mister Baldwin 0:23:08.720 --> 0:23:11.680 have a duty to independently inspect the gun or in 0:23:11.800 --> 0:23:15.720 some other means make sure it was secured or safeguarded, 0:23:16.160 --> 0:23:19.680 not having live ammunition and not pointing it at an 0:23:19.720 --> 0:23:23.280 individual before firing, you know, having failed to do that. 0:23:23.640 --> 0:23:26.280 And so the jury's going to have to conclude business 0:23:26.400 --> 0:23:30.680 ordinary negligence or was there a heightened duty. Now here's 0:23:30.680 --> 0:23:34.359 the thing with firearms, Unlike walking on the sidewalk, playing 0:23:34.400 --> 0:23:37.359 football on the beach, you know, even driving a car, 0:23:38.320 --> 0:23:42.400 firearms safety isn't a different heightened category. And the prosecutor 0:23:42.440 --> 0:23:45.560 can argue that, the prosecutor can argue that anybody who 0:23:45.600 --> 0:23:49.200 holds the gun has an extra duty of making sure 0:23:49.240 --> 0:23:51.960 they're doing it in a safe manner, and that's fundamentally 0:23:52.040 --> 0:23:55.320 different than you know, an ordinary day to day activity 0:23:55.359 --> 0:23:58.119 of an adult. Then the jury decides whether and just 0:23:58.280 --> 0:24:02.760 this criminal or not. Baldwin continues to insist that while 0:24:02.800 --> 0:24:05.240 he pulled back the hammer on the weapon, he never 0:24:05.280 --> 0:24:09.200 pulled the trigger and apparently the weapon has been tested 0:24:09.240 --> 0:24:11.880 by the FBI, and there's nothing wrong with the weapon. 0:24:12.240 --> 0:24:14.879 If he holds to that, is that an uphill battle 0:24:14.920 --> 0:24:19.359 for him. Well, so I think two points on that. 0:24:19.680 --> 0:24:23.359 One is, you know, the FBI and their crime lab, 0:24:23.400 --> 0:24:27.639 their experts, that's the platinum standard. And I don't know, 0:24:27.760 --> 0:24:30.240 off the top of my head of a better and 0:24:30.320 --> 0:24:35.000 more professional group of individuals than those who work at 0:24:35.040 --> 0:24:37.679 the FBI. Have no idea who handled the weapon at 0:24:37.720 --> 0:24:40.919 the FBI, But the FBI is the top of the 0:24:41.000 --> 0:24:44.000 line in doing this kind of thing. Having said that, 0:24:44.800 --> 0:24:48.760 mister Baldwin may very well believe that he didn't pull 0:24:48.840 --> 0:24:51.480 the trigger and he pulled back the hammer. Human memory 0:24:51.600 --> 0:24:55.399 is fallible. That's why, for example, when a number of 0:24:55.400 --> 0:24:58.159 people see a plane accident who are on the ground, 0:24:58.800 --> 0:25:02.280 the National Transportation Safety Board, when they investigate that accident, 0:25:02.359 --> 0:25:06.520 they don't really take into account eyewitness statement with any 0:25:06.520 --> 0:25:09.639 degree of certainty, because invariably one witness will say the 0:25:09.640 --> 0:25:12.080 tail flew off first, and other I'll say the engines 0:25:12.160 --> 0:25:14.639 dropped off the plane, and a thirdle say it blew up. 0:25:14.840 --> 0:25:18.080 You know, It's how the brain receives information, stores it, 0:25:18.119 --> 0:25:20.520 and processes memory, and it doesn't do a very good 0:25:20.600 --> 0:25:24.320 job of it in stressful conditions. So I think you know, 0:25:24.320 --> 0:25:27.840 in mister Baldwin's mind, the public ought to consider that 0:25:27.880 --> 0:25:31.560 he believes he's telling the truth. The scientific and engineering 0:25:31.600 --> 0:25:34.600 the stem data from the FBI crime lab may very 0:25:34.640 --> 0:25:38.320 well rebut what he believes. The only way normally to 0:25:38.440 --> 0:25:41.440 get his belief to a jury is for him to testify, 0:25:41.720 --> 0:25:44.680 unless the prosecution gets it in, you know, for some 0:25:44.720 --> 0:25:47.720 odd reason they open the door for it. So it 0:25:47.840 --> 0:25:51.080 can come down to this, the experts at the crime 0:25:51.160 --> 0:25:54.960 lab versus the witness, and that's not unheard of in 0:25:55.000 --> 0:26:03.040 criminal trials. The Dad Hutchins widower to a list of 0:26:03.080 --> 0:26:06.440 forty six witnesses. What does that indicate to you? But 0:26:06.600 --> 0:26:10.040 they're still building their case and if a statement was 0:26:10.200 --> 0:26:14.520 made by the deceased for it to be admitted into evidence. 0:26:14.600 --> 0:26:17.240 So there's a rule of evidence that if a witness 0:26:17.280 --> 0:26:20.880 is unavailable because they've died or they can't be reached, 0:26:20.920 --> 0:26:23.639 then their statement may be admissible through a third party. 0:26:23.680 --> 0:26:27.320 The courts are pretty tough on not letting hearsay evidence 0:26:27.440 --> 0:26:30.080 come in. And this Hutchins made a statement and she 0:26:30.160 --> 0:26:32.480 were alive and someone else tried to get it in, 0:26:32.600 --> 0:26:35.199 more often than not it would be hearsay. So my 0:26:35.400 --> 0:26:39.240 sense is that the prosecutor has something that Hutchins said 0:26:39.440 --> 0:26:41.760 that they want to get into evidence and the only 0:26:41.800 --> 0:26:44.080 way to do it is through the person who she 0:26:44.160 --> 0:26:48.080 said it too. There are so many civil lawsuits involved here. 0:26:48.280 --> 0:26:51.280 Do any of those impinge in any way on the 0:26:51.359 --> 0:26:56.600 criminal proceedings? No? Actually, normally, civil lawsuits are held in 0:26:56.720 --> 0:27:00.440 a bayand until a criminal proceeding is done, and attutes 0:27:00.440 --> 0:27:04.080 of limitations on tort suits do not exhaust if they've 0:27:04.119 --> 0:27:07.240 been held in abeyance because of an appending criminal trial. 0:27:07.480 --> 0:27:10.800 And the reason for that is so that civil lawsuits 0:27:10.840 --> 0:27:14.119 do not impinge on a criminal suit. Now, with the 0:27:14.200 --> 0:27:18.439 civil lawsuits, my understanding as depositions may have already been taken, 0:27:18.840 --> 0:27:23.000 interrogatories may have already been accomplished, and so witnesses may 0:27:23.040 --> 0:27:26.240 have already said things that could be used against them 0:27:26.440 --> 0:27:30.160 in a trial or could contradict testimony that they gave 0:27:30.200 --> 0:27:32.840 in the criminal trial, and that puts everybody at rest. 0:27:33.240 --> 0:27:38.560 The Bollwing team is trying to remove the DA from 0:27:38.600 --> 0:27:42.960 the criminal case because she's also an elected New Mexico legislator. 0:27:43.160 --> 0:27:46.920 Does that have legs? You think that is a possibility. Well, 0:27:47.280 --> 0:27:50.920 if the unique argument, it is not by any stretch 0:27:51.240 --> 0:27:55.880 a frivolous argument. It's rooted in the state constitution. It's 0:27:55.960 --> 0:27:59.480 never been brought up as an issue before the courts before. 0:28:00.040 --> 0:28:02.840 We have a part time legislature in New Mexico, so 0:28:02.880 --> 0:28:05.640 it makes it somewhat different than the United States Congress 0:28:05.760 --> 0:28:09.200