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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 2: Were thousands of Starbucks workers at hundreds of stores across

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Speaker 2: the country went on strike for one day last November

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Speaker 2: to protest their union's lack of a first contract with

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Speaker 2: the coffee chain despite a nearly two year organizing drive.

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Speaker 3: We are really fighting to come to the bargaining table

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Speaker 3: and regardless of what Starbucks is advertising, they are not

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Speaker 3: true to their word.

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Speaker 4: The union, Starbucks Workers United, won its first representation at

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Speaker 4: the company in December of twenty twenty one, at a

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Speaker 4: store in Buffalo, New York. Since then, it has won

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Speaker 4: votes at more than three hundred and sixty stores, but

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Speaker 4: the union and Starbucks have yet to agree on a

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Speaker 4: labor contract for any of the more than nine thousand

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Speaker 4: union members. Tom Erickson is president of Teamster's Local one twenty.

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Speaker 1: At the end of the day, these workers want to

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Speaker 1: be represented, and they Starbucks to do the right thing,

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Speaker 1: come to the table and support them.

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Speaker 4: Union members have filed hundreds of complaints accusing Starbucks of

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Speaker 4: breaking the law in its efforts to fight off unionization,

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Speaker 4: and now the Supreme Court has agreed to hear Starbucks

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Speaker 4: case over the firing of union workers at a Memphis store.

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Speaker 4: Would you say that Starbucks has become sort of the

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Speaker 4: face of the fight by management against unionization or are

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Speaker 4: other companies doing the same.

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Speaker 3: Starbucks has been fighting union as they've been really intensely

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Speaker 3: and has been both exploiting all of the opportunities in

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Speaker 3: the law to fight unions that has also violated the

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Speaker 3: law in many different ways. But they're not alone. We

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Speaker 3: also see that kind of resistance the unions occurring now

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Speaker 3: by what was formerly known as Twitter, also SpaceX, the

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Speaker 3: Elamask companies, by Arii, by Amazon. So I don't think

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Speaker 3: Starbucks is alone, but it certainly is really following textbook

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Speaker 3: anti union strategies.

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Speaker 2: Yeah.

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Speaker 4: I saw that it's facing more than seven hundred complaints

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Speaker 4: before the NLRB for everything from firing union supporters, spying

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Speaker 4: on workers, closing stores during labor campaigns. So this comes

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Speaker 4: from the top. I take it. It's not the individual

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Speaker 4: stores that are deciding this.

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Speaker 3: Right, this kind of labor policy is almost always at

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Speaker 3: a national level. There might be occasional times where a

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Speaker 3: manager was rogue, but this kind of comprehensive anti worker

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Speaker 3: campaign is national labor policy for the company.

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Speaker 4: So tell us what happened in this case.

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Speaker 3: The case that the Supreme Court just granted involved deven

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Speaker 3: workers who worked at a Starbucks cafe in Memphis, and

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Speaker 3: they sought to organize the union and the company fires them.

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Speaker 3: They alleged because of their efforts to organize the union.

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Speaker 3: They had recently appeared on local TV talking about the

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Speaker 3: union campaign, so there was no question that they were

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Speaker 3: involved with it. Notably, Starbucks denieddoing but it did end

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Speaker 3: up hiring the workers back. But in any event, in

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Speaker 3: the meantime, the NRB sought an injunction to get themly instated. Frequently,

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Speaker 3: when workers are fire for organizing unions, it can take many,

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Speaker 3: many years for them to get their jobs back. Here,

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Speaker 3: because the evidence was so overwhelming that Starbucks had violated

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Speaker 3: the law, the board thought an injunction in court so

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Speaker 3: that the workers would be reinstated while the legal appeals proceeded.

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Speaker 4: And so the question is the standard that the judge

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Speaker 4: used and the Sixth Circuit approved of for granting the

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Speaker 4: preliminary injunction is that the issue exactly right.

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Speaker 3: These are called ten day injunctions, and they're very important

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Speaker 3: because they enable release while litigation is pending, but they're

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Speaker 3: not that common. The NLRB only pursues them in cases

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Speaker 3: where they be and that the violations are significant and

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Speaker 3: they have a strong case. And there's disagreement among the

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Speaker 3: courts of appeals about what standards should apply to decide

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Speaker 3: whether one of these injunctions should issue, and that's a

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Speaker 3: legal question that's the court or appears poised to the side.

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Speaker 4: So the approach used by the Sixth Circuit here is,

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Speaker 4: would you say a more lenient approach requires less of

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Speaker 4: the NLRB.

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Speaker 3: Probably, So the Sixth Circuit applies to two part tests,

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Speaker 3: and that examines first whether a district court has reasonable

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Speaker 3: cause to believe there was a labor violation, and second

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Speaker 3: whether an injunction would be just and proper. And it

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Speaker 3: appears that that is slightly more lenient. So five circuits

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Speaker 3: apply that f and they are slightly more likely to

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Speaker 3: grant injunctions. Four circuits apply four part tests that's used

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Speaker 3: in other cases involving injunctions, and those courts look at

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Speaker 3: likelihood of success on the merit, chance of irreparable harm,

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Speaker 3: balance of parties, interests, and whether an injunction is in

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Speaker 3: the public interest. But the socit are general in this

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Speaker 3: case in opposing of position that I think is fairly

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Speaker 3: well supported by evidence that in fact, the two tests

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Speaker 3: are pretty similar and they're not that much different in

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Speaker 3: how they amount.

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Speaker 4: Yeah, I saw that, So I wondered why Starbucks and

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Speaker 4: business interests are so set on challenging this standard. And

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Speaker 4: Starbucks said it was seeking to level the playing field

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Speaker 4: for all US employers by ensuring that a single standard

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Speaker 4: is applied.

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Speaker 3: So Starbucks is saying that the surfaces that use this

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Speaker 3: two part tests are too lenient, and so they want

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Speaker 3: one standards throughout the country. But I think was also

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Speaker 3: really going on here is that the business groups, including

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Speaker 3: the Chamber of Commerce which filled the preef and support

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Speaker 3: of Sirciary, are trying to get the court to send

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Speaker 3: a signal to the lower courts and to the Board

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Speaker 3: that they should seek these injunction plus frequently and grant

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Speaker 3: the injunction plus frequently. So I think what they're hoping

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Speaker 3: for is a general tightening of these injunctions. You know,

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Speaker 3: it's a little odd that the court granted the case

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Speaker 3: technically it meets their Cuary standards because there is a split.

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Speaker 3: But as the splister General pointed, out in opposition. It's

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Speaker 3: not clear that the split matters that much, and it's

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Speaker 3: not clear that this is actually a great vehicle for

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Speaker 3: deciding the split, because it's not clear that in this

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Speaker 3: case it would have come out differently no matter what

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Speaker 3: standard was applied.

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Speaker 4: Yeah, So the NLRB said that it sought the injunction

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Speaker 4: twenty one times in twenty twenty two, down from as

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Speaker 4: many as thirty eight each year during the Obama administration.

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Speaker 4: Is it because the current NLRB General Counsel, Jennifer Bruzso

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Speaker 4: says that her office is going to pursue these Tenjai

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Speaker 4: injunctions more aggressively.

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Speaker 3: Well, I do think that the companies are concerned that

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Speaker 3: these intentions may be pursued more aggressively. I also think

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Speaker 3: they're taking advantage of a conservative turn on the court,

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Speaker 3: so they think they have the opportunity to further constrain workers,

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Speaker 3: right more so than the court that existed previously.

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Speaker 4: Would you call this Supreme Court the most business friendly

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Speaker 4: anti labor Supreme court in modern history?

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Speaker 3: Well, I guess it depends when modern history starts. It

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Speaker 3: certainly has real echoes with the court that existed before

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Speaker 3: the New Deal that routinely struck down regulations protecting workers

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Speaker 3: and consumers, and that also really tried to constrain government

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Speaker 3: power to protect workers and consumers. I think one thing

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Speaker 3: that's particularly concerning is the series of anti union, anti

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Speaker 3: worker cases that the Court has issued, but also more

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Speaker 3: generally its attack on government and on the administrative state.

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Speaker 3: So in addition to this Starbucks case, the Court has

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Speaker 3: before it this year a number of cases that could

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Speaker 3: really strain Labor Board's power, while it constrains all other

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Speaker 3: agencies powers as well.

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Speaker 4: So that's why I'm wondering at any hope that they

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Speaker 4: would rule against Starbucks here.

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Speaker 3: Yeah, I mean it's certainly possible, right, I mean, each

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Speaker 3: case is considered on its own merits. I think there

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Speaker 3: are good arguments in favor of the standard of the

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Speaker 3: sixther that use is never a good practice to predict

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Speaker 3: what the Court would do. I mean, it's more likely

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Speaker 3: the way in favor of Starbucks that you never know

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Speaker 3: with a given case, but it certainly is a very

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Speaker 3: strong pattern by this court in favor of big business

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Speaker 3: and against workers.

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Speaker 4: Business groups urge the Supreme Court to take this case,

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Speaker 4: and the chair of the Coalition for a Democratic Workplace

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Speaker 4: which is an umbrella group of hundreds of business organizations,

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Speaker 4: said that court injunctions can force businesses to retain expensive assets,

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Speaker 4: remain in unprofitable facilities, or reinstate employees who engaged in

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Speaker 4: misconduct based on flawed theories or unsubstantiated allegations. I mean,

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Speaker 4: do you think that they have a point in that

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Speaker 4: it takes a long time for the layers of review

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Speaker 4: that the NLRB goes through.

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Speaker 3: Well, it certainly does take a very long time for

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Speaker 3: these cases to be resolved. First the board has to

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Speaker 3: decide them, and then they typically get appealed through multiple

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Speaker 3: levels of the appeal. But that's exactly why these injunctions

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Speaker 3: are so important, because workers get fired for organizing unions

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Speaker 3: and then they are not reinstated under injunctions even when

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Speaker 3: the evidence is overwhelming. What that means is that they

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Speaker 3: are out of work or they're out of work at

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Speaker 3: that particular facility for many, many many years until the

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Speaker 3: cases are resolved. And once the case is resolved, the

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Speaker 3: only remedies that are available to them are reinstatements minus

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Speaker 3: back pay earned in the meantime. So there's really no

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Speaker 3: disincentive for employers to violate the law, and so I

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Speaker 3: think actually the opposite of what the business are due

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Speaker 3: that in order for the statute to be vindicated, these

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Speaker 3: injunctions need to be available.

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Speaker 4: Is the real concern for businesses the costs associated with

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Speaker 4: having unionized workers.

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Speaker 3: Well, unions certainly mean that profits within the company are

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Speaker 3: distributed more fairly, so that workers get a fair share

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Speaker 3: of the profits that the company is producing. I think

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Speaker 3: there's lots of unionized companies within the United States that

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Speaker 3: have learned to deal cooperatively with unions and that have

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Speaker 3: really productive working relationships and that continue to prosper. But

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Speaker 3: I think what Starbucks is most worried about is giving

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Speaker 3: up control with any sort and having to share power

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Speaker 3: with its workers. So I don't think it's just about

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Speaker 3: the money, but also about the extent to which workers

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Speaker 3: will have a voice in working conditions, as well as

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Speaker 3: increasing ages and benefits.

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Speaker 4: How would you characterize these times for unions. I mean,

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Speaker 4: we've seen organized labor demonstrate its power last year through

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Speaker 4: the ua W strike and the Hollywood Writers and Directors Strike.

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Speaker 3: Well, certainly there's widespread interest in unionization in the United States,

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Speaker 3: so we see both uptick and organizing efforts. An increase

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Speaker 3: in strikes and polls that show that over seventy percent

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Speaker 3: of workers would like to have a union. I think

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Speaker 3: the big question is is that energy going to translate

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Speaker 3: into an increase in union density and a growth in unions.

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Speaker 3: And there's a major challenge with achieving that increase, and

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Speaker 3: that is that US labor law doesn't effectively protect the

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Speaker 3: worker's ability to organize unions. So you have all these

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Speaker 3: Starbucks workers that have won elections across the country, and

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Speaker 3: yet not a single one has yet reached a first contract.

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Speaker 3: That's in part because the law doesn't effectively forced the

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Speaker 3: employer to negotiate a contract, or to reach a settlement,

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Speaker 3: or to obey the law.

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Speaker 4: Would you explain that further, because I thought that our

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Speaker 4: labor laws were pretty robust.

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Speaker 3: The law is very strong in the sense that it

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Speaker 3: provides workers are right to organize unions or right to

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Speaker 3: negotiate contracts, and a right to strike. But in practice,

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Speaker 3: the enforcement of those rights is really limited and the

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Speaker 3: penalties are very weak for violations of the law. So

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Speaker 3: after workers win the union election, the obligation is on

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Speaker 3: the employer to bargain in good faith, but there's very

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Speaker 3: little ability to force that to happen, and so you

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Speaker 3: have employers at bargaining to space. We just saw that

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Speaker 3: happen with the auto workers. We saw that happen with

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Speaker 3: the Hollywood workers, where the workers and the employers did

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Speaker 3: reach good contracts. But a lot of times when workers

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Speaker 3: organize the union for the first time, employers either refuse

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Speaker 3: to bargain or really drag their feet and aren't willing

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Speaker 3: to reach first contract.

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Speaker 4: Thanks so much for being on the show, Kate. That's

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Speaker 4: Professor Kate Andreas of Columbia Law School. Coming up next

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Speaker 4: on The Bloomberg Lawn Show. Actor Alec Baldwin is once

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Speaker 4: again staring down a felony involuntary manslaughter charge in connection

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Speaker 4: with the fatal shooting of a cinematographer on the set

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Speaker 4: of the movie Rust in Mexico in twenty twenty one.

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Speaker 4: I'm June Grosso and you're listening to Bloomberg. Alec Baldwin

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Speaker 4: is once again staring down a felony involuntary manslaughter charge

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Speaker 4: after a grand jury inded the actor in connection with

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Speaker 4: the fatal shooting of a cinematographer on the set of

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Speaker 4: the movie Rust in New Mexico in twenty twenty one.

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Speaker 4: Prosecutors had dismissed charges against ball when last April, but

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Speaker 4: a new analysis of the gun opened the way for

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Speaker 4: prosecutors to reboot the case. Baldwin has always said he

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Speaker 4: never actually fired the weapon, that he pulled back the

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Speaker 4: gun's hammer, but not the trigger. Here's an interview with

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Speaker 4: ABC's George Stephanopoulos.

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Speaker 1: It wasn't in the script for the trigger to be pulled. Well,

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Speaker 1: the trigger wasn't pulled. I didn't pull the trigger. So

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Speaker 1: you never pulled the trigger. No, no, no, no no.

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Speaker 1: I would never point the gun going to pull a

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Speaker 1: trigger at them. Never.

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Speaker 4: But a recent forensic analysis of the gun concluded that

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Speaker 4: quote the trigger had to be pulled or depressed sufficiently

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Speaker 4: to release the cocked or retracted hammer. Joining me is

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Speaker 4: Joshua Castenberg, a criminal law professor at the University of

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Speaker 4: New Mexico Law School and a former prosecutor. The handling

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Speaker 4: of this case by prosecutors has been very confusing. They

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Speaker 4: dropped the case back in April. Why are they bringing

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Speaker 4: it again?

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Speaker 5: Well, I think for a couple of reasons, and you know,

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Speaker 5: I'm not privy at all to their internal discussion, but

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Speaker 5: I think number one, when the defenses were raised by

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Speaker 5: the other defendant in the case. Some of those defenses

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Speaker 5: that were raised pointed in the direction of mister Baldwin.

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Speaker 5: In other words, it's not fully my fault, it's also

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Speaker 5: his he didn't listen to me, that sort of thing.

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Speaker 5: The other thing is that the prosecutors are stuck with

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Speaker 5: this evidence. That's pretty compelling evidence if you believe it.

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Speaker 5: And what I mean is the FBI crime lab, when

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Speaker 5: they investigated the firearm, concluded that the gun could not

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Speaker 5: have gone off on its own, that the trigger had

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Speaker 5: to be depressed by a human finger. And I think

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Speaker 5: once that evidence is there and known to the public

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Speaker 5: in New Mexico, the question then is, well, why isn't

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Speaker 5: this going to trial, particularly if mister Baldwin, who may

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Speaker 5: be absolutely sincere in his memory, is saying I didn't

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Speaker 5: press the trigger, the gun went off on its own,

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Speaker 5: and the FBI experts or the platinum standard of crime

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Speaker 5: labs are responding with that's impossible. You're stuck with this

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Speaker 5: where is the truth? And I think that's what compels

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Speaker 5: the prosecutors to go forward. Now, there were mistakes made,

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Speaker 5: particularly in charging a crime that couldn't have been charged

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Speaker 5: because of the date of the crime coming into existence.

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Speaker 5: So you're absolutely right that the prosecution has been a

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Speaker 5: bit confused, to say the least.

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Speaker 4: Why did they prosecutors this time bring this before a

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Speaker 4: grand jury for an indictment rather than a preliminary hearing, Well.

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Speaker 5: You know there's going to be a lot of armshair quarterbacking,

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Speaker 5: I suppose on that question. I mean, the old comment is,

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Speaker 5: you know you can convince a grand jury to indict

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Speaker 5: a ham sandwich. On the other hand, a grand jury

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Speaker 5: is specifically mentioned in our Bill of Rights. It doesn't

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Speaker 5: apply to the States, but it's mentioned in our Bill

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Speaker 5: of Rights. And I think what the prosecutor wanted this

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Speaker 5: is my guess is ordinary New Mexican citizens, many of

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Speaker 5: whom own firearms, and many of them who understand the

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Speaker 5: workings of how handguns operate, would come up with the

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Speaker 5: right decision to make, because if you take it to

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Speaker 5: a preliminary hearing, all the judicial officer is going to

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Speaker 5: do is say the facts meet the elements of the crime,

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Speaker 5: and therefore you have probable cause to go forward, as

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Speaker 5: opposed to a grand jury, which might say, look, Baldwin

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Speaker 5: was in the wrong, but it doesn't rise to the

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Speaker 5: level of a crime. This is a lawsuit.

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Speaker 4: Elec Bulwin did pull the trigger. He maintains that he

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Speaker 4: pulled back the gun's hammer, but he did not pull

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Speaker 4: the trigger and the gun just went off. Why does

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Speaker 4: that matter so much? Because when he was handed the gun,

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Speaker 4: he was told that there were no live bullets in it,

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Speaker 4: and there's not supposed to be live ammunition on the set.

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Speaker 4: So why does it matter if he actually did pull

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Speaker 4: the trigger?

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Speaker 5: Well, I think you know, that's a great question, and

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Speaker 5: that this is going to get into a nuanced argument

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Speaker 5: that the prosecutor is going to make. And the nuanced

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Speaker 5: argument the prosecutor's going to make is everybody who handles

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Speaker 5: a gun has a basic duty of gun safety, and

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Speaker 5: he had a duty to ensure the gun was unloaded

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Speaker 5: or it was unsafe or inoperable before he put it

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Speaker 5: in his hand. And the proof that he didn't do

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Speaker 5: that is that he consciously pulled the trigger. I mean,

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Speaker 5: that's going to be the prosecutor's argument. Whether it flies

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Speaker 5: with a jury or not, I can't say. On the

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Speaker 5: other hand, if what we have is a hair trigger gun,

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Speaker 5: that the moment someone put their palm on the gun

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Speaker 5: stock and the gun goes off, or it goes off

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Speaker 5: simply because it's been cought. Baldwin has a much better

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Speaker 5: argument to say I was exercising gun safety because I

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Speaker 5: never put my finger on the trigger and pulled. So

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Speaker 5: that is a critical piece of evidence that the prosecutor

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Speaker 5: is going to do their utmost to try to bring

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Speaker 5: out and prove guilt.

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Speaker 4: The new charges rest on two theories of involuntary manslaughter.

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Speaker 4: That Baldwin either caused the death as an involuntary manslaughter

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Speaker 4: by negligent use of a firearm, or is it involuntary

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Speaker 4: manslaughter without due caution or circumspection. So what's necessary to

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Speaker 4: prove those charges?

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Speaker 5: So the first one goes to what we were just

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Speaker 5: talking about. In order for the prosecution to prove beyond

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Speaker 5: a reasonable doubt, they have to prove that bald and

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Speaker 5: depressed the trigger without you know, without exercising appropriate gun safety,

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Speaker 5: and that lack of exercise of appropriate gun safety rises

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Speaker 5: to a criminal negligent you know arena, So it's kind

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Speaker 5: of recklessness. The second charge is that while Baldwin was

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Speaker 5: engaged in an ordinarily lawful activity, he didn't exercise enough

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Speaker 5: caution in a general sense, and that lack of exercise

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Speaker 5: of enough caution resulted in the death of another. Now

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Speaker 5: put it a different way. Suppose you have a license

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Speaker 5: to use fireworks on the fourth of July, and therefore

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Speaker 5: your ignition of fireworks is lawful under state law. But

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Speaker 5: you don't look around before you fire off rocket to

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Speaker 5: see if there are children in the street or motorists driving,

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Speaker 5: and a fireworks hits a kid and kills the kid.

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Speaker 5: You didn't do anything illegal, per se, but lack of safety,

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Speaker 5: you know, your lack of overall caution for the general public,

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Speaker 5: makes that act rise to a crime. So those are

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Speaker 5: the two theories. He can only be convicted of one.

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Speaker 5: If he's convicted of any one of the things the

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Speaker 5: jury might do is get confused between the two, and

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Speaker 5: if they split between the two, then he's acquitted because

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Speaker 5: you have to have a unanimous jury that agrees with

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Speaker 5: one theory and one theory only.

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Speaker 4: Yeah, I was wondering how the prosecution is going to

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Speaker 4: handle that as they present the case at trial.

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Speaker 5: Well, so it's called charging in the alternative, and what

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Speaker 5: the judge is going to tell the jury is, you

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Speaker 5: cannot find mister Baldwin guilty of both. You can find

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Speaker 5: mister Baldwin guilty of one or the other or of none.

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Speaker 5: But to find him guilty of one or the other,

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Speaker 5: you have to have unanimity. So all twelve jurors have

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Speaker 5: to agree that the prosecution has proved their case beyond

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Speaker 5: a reasonable doubt.

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Speaker 4: Will t in his role as an actor as well

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Speaker 4: as his role as a co.

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Speaker 5: Producer, Well, he's going to be tried as Alec Baldwin.

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Speaker 5: And but that's going to entail is the prosecutor putting

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Speaker 5: on evidence that he had a duty to even do

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Speaker 5: you know, perhaps had a duty to do firearms training,

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Speaker 5: and I know that there's been some talk that he

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Speaker 5: missed that course, and you know, I think the prosecutor

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Speaker 5: is going to try to avoid those titles to the

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Speaker 5: extent they can, because I could see his very very

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Speaker 5: exceptional defense team trying to bring in evidence like this

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Speaker 5: is the role of a producer, and this is the

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Speaker 5: role of an actor, and this is why mister Baldwin

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Speaker 5: did not have to attend that firearms training because he

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Speaker 5: was acting in the role of an assistant producer, not

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Speaker 5: an actor or vice versa. I think the prosecutor is

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Speaker 5: going to try to avoid all of that I.

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Speaker 4: Asked that because as a producer there have been allegations

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Speaker 4: that the set was not safe. You know, the safety

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Speaker 4: on the set was neglected. Rust Movie Productions, the company

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Speaker 4: behind the film, paid one hundred thousand dollars fine to

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Speaker 4: state workplace safety regulators after a report into safety failures,

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Speaker 4: included testimony that managers took limited or no action after

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Speaker 4: there were two earlier gun misfires on set, and the

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Speaker 4: Santa Fe County Sheriff said that five hundred rounds of

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Speaker 4: ammunition were found, a mix of blank, dummy rounds and

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Speaker 4: suspected live rounds which are not supposed to be on

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Speaker 4: the set. So in his role as a producer, it

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Speaker 4: seems like, you know that's right in his Baillywick.

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Speaker 5: Well, it would seem to be that way. You know,

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Speaker 5: You've got a very strong legal background and there are

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Speaker 5: rules of evidence, and I could see the defense team

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Speaker 5: trying to suppress define the investigation to say that, look,

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Speaker 5: you know, Alec Baldwin has a role on the RUSS move,

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Speaker 5: but he is not responsible for the overall safety of

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Speaker 5: the set in his role as an actor. That goes

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Speaker 5: back to my comment that I think the prosecution will

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Speaker 5: want to get that evidence in, but say it doesn't

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Speaker 5: matter what his role was, but do its best to

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Speaker 5: sort of water down titles and just say everybody is responsible.

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Speaker 5: I think the defense is going to try to argue

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Speaker 5: he's an actor nothing more.

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Speaker 4: As far as I know, it still hasn't been determined

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Speaker 4: where the live rounds came from. As I said before,

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Speaker 4: there's not supposed to be live ammunition on a movie set.

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Speaker 4: The armorer Hanagucierra's read is set to go on trial

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Speaker 4: next month, and according to Variety, the prosecutor offered her

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Speaker 4: a favorable outcome last fall if she would help explain

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Speaker 4: how live rounds made it onto the film set. She

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Speaker 4: didn't provide that explanation for whatever reason. So does that

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Speaker 4: matter that no one seems to know where those live

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Speaker 4: rounds came from?

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Speaker 5: Well, it would be helpful to both sides. I supposed

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Speaker 5: to know where they came from, as long as mister

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Speaker 5: Baldwin wasn't the source of them, which I doubt that

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Speaker 5: he was.

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Speaker 4: Right, he certainly hasn't been accused of that.

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Speaker 5: I can't speculate as to why Hannah Goudy Earth did

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Speaker 5: not accept because you know, I mean, she has a

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Speaker 5: right not to it's that's a difficult question, and it

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Speaker 5: actually might favor the defense because if the defense is

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Speaker 5: able to cast significant doubt on where those bullets came from,

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Speaker 5: you know, maybe the shipper for example, maybe maybe a manufacturer,

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Speaker 5: maybe somewhere back in Hollywood, you know, who knows, But

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Speaker 5: it might make it palatable more to the defense to

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Speaker 5: be able to argue how is Baldwin supposed to know

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Speaker 5: there were any live round? I mean, you can go

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Speaker 5: back to that. I'm not saying it's a strong selling

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Speaker 5: point to a jury, but it could possibly be.

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Speaker 4: It seems like the defense has a lot of arguments

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Speaker 4: that can be raised. Whether they rise to the level

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Speaker 4: of reasonable doubt is another question. And the biggest question

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Speaker 4: is whether Alec Baldwin will take the stand in its

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Speaker 4: own defense. I'll be discussing that with Professor Josh Castenberg

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Speaker 4: of the University of New Mexico Law School. Coming up

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Speaker 4: next on the Bloomberg Law Show. I'm June Grosso and

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Speaker 4: you're listening to Bloomberg. Alec Baldwin is once again facing

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00:24:26,920 --> 00:24:31,919
Speaker 4: felony involuntary manslaughter charges after a grand jury indicted the

442
00:24:31,960 --> 00:24:35,400
Speaker 4: actor in connection with the fatal twenty twenty one shooting

443
00:24:35,440 --> 00:24:38,320
Speaker 4: of a cinematographer on the set of the movie Rust

444
00:24:38,440 --> 00:24:41,919
Speaker 4: in New Mexico. I've been talking to Professor Josh Castenberg

445
00:24:42,040 --> 00:24:45,320
Speaker 4: of the University of New Mexico Law School. Josh, there

446
00:24:45,320 --> 00:24:48,800
Speaker 4: were apparently problems with the testing of the gun. The

447
00:24:48,960 --> 00:24:51,560
Speaker 4: forensic expert had to replace parts of the gun which

448
00:24:51,600 --> 00:24:55,879
Speaker 4: had been damaged by the FBI during its analysis. So

449
00:24:55,960 --> 00:24:57,560
Speaker 4: I assume that there is going to be a lot

450
00:24:57,600 --> 00:25:01,359
Speaker 4: of expert testimony about the gun and the defense would

451
00:25:01,440 --> 00:25:02,200
Speaker 4: bring that up.

452
00:25:02,920 --> 00:25:07,000
Speaker 5: Yes, I assume, So I think that's right. Anytime you know,

453
00:25:07,119 --> 00:25:11,440
Speaker 5: the FBI or any other crime lab has a material object,

454
00:25:11,520 --> 00:25:14,600
Speaker 5: there's the possibility that the material object, in this case,

455
00:25:14,640 --> 00:25:18,000
Speaker 5: the gun, will be slightly altered. But I think the

456
00:25:18,040 --> 00:25:20,800
Speaker 5: defense is certainly going to raise that as an issue.

457
00:25:20,840 --> 00:25:23,520
Speaker 5: And again it's hard for me to speculate on how

458
00:25:23,560 --> 00:25:26,080
Speaker 5: far that would go with a jury. But look, I

459
00:25:26,119 --> 00:25:29,800
Speaker 5: think for the prosecutor to succeed in this case, they

460
00:25:29,840 --> 00:25:32,000
Speaker 5: have to go back to the keep it simple rule,

461
00:25:32,520 --> 00:25:36,639
Speaker 5: and that is Baldwin had a duty to observe and

462
00:25:36,760 --> 00:25:39,399
Speaker 5: examine the gun before he put his hand on it.

463
00:25:39,480 --> 00:25:42,560
Speaker 5: He failed to do that duty. It resulted in a

464
00:25:42,680 --> 00:25:46,080
Speaker 5: death and his statements that he made afterwards that he

465
00:25:46,119 --> 00:25:50,679
Speaker 5: didn't depress the trigger with his finger conflict with, you know,

466
00:25:50,760 --> 00:25:54,720
Speaker 5: the expertise of the FBI. And if the prosecution keeps

467
00:25:54,760 --> 00:25:58,960
Speaker 5: it that simple, that's, in my opinion, their best chance

468
00:25:59,119 --> 00:26:04,080
Speaker 5: for a painting a conviction. Unfortunately, all too many times

469
00:26:05,400 --> 00:26:09,880
Speaker 5: prosecutors want to defeat a defense before the defense is raised,

470
00:26:10,600 --> 00:26:13,000
Speaker 5: and they put up lots of straw men and try

471
00:26:13,040 --> 00:26:15,600
Speaker 5: to knock them down, and they leave the jury more

472
00:26:15,680 --> 00:26:20,480
Speaker 5: confused and likely to acquit than they would have otherwise

473
00:26:20,560 --> 00:26:23,920
Speaker 5: been at the start of the trial. So I think

474
00:26:23,960 --> 00:26:26,600
Speaker 5: the questions of, you know, does it matter that the

475
00:26:26,720 --> 00:26:30,280
Speaker 5: FBI may have damaged the gun are great questions, but

476
00:26:30,359 --> 00:26:33,320
Speaker 5: I think the prosecution is best suited by not raising

477
00:26:33,320 --> 00:26:37,120
Speaker 5: those and objecting to them if the defense does raise them.

478
00:26:37,200 --> 00:26:39,000
Speaker 5: And I mean, that's just my two cents in this,

479
00:26:39,160 --> 00:26:43,040
Speaker 5: but I've seen enough trials and you know, examine enough

480
00:26:43,080 --> 00:26:46,239
Speaker 5: trials after the fact where, for example, police officers are

481
00:26:46,280 --> 00:26:49,399
Speaker 5: being charged with crimes and it seems to me the

482
00:26:49,440 --> 00:26:52,800
Speaker 5: prosecution overplays their case over and over again.

483
00:26:53,560 --> 00:26:56,840
Speaker 4: And the grand jury indictment only means that eight of

484
00:26:56,880 --> 00:27:01,440
Speaker 4: the twelve jurors found probable cause to believe that Baldwin

485
00:27:01,520 --> 00:27:04,960
Speaker 4: had committed a crime. The standard a trial is much higher.

486
00:27:05,880 --> 00:27:09,359
Speaker 5: Yes, so probable cause of the lowest standard in the law,

487
00:27:09,840 --> 00:27:12,879
Speaker 5: and they only need two thirds. At the criminal trial.

488
00:27:12,920 --> 00:27:16,680
Speaker 5: It's proof beyond a reasonable doubt, and that basically means,

489
00:27:16,720 --> 00:27:20,360
Speaker 5: in lay persons terms, if there's any reasonable doubt as

490
00:27:20,359 --> 00:27:24,439
Speaker 5: to Baldwin's guilt, the jury has to acquit, and so

491
00:27:24,680 --> 00:27:28,360
Speaker 5: that involves a bit of speculation. And in a criminal

492
00:27:28,400 --> 00:27:31,960
Speaker 5: negligence case, which this really is at its root, there's

493
00:27:32,000 --> 00:27:34,399
Speaker 5: a lot of room for speculations. Why I told The

494
00:27:34,400 --> 00:27:38,480
Speaker 5: New York Times that these type of cases are very difficult,

495
00:27:38,720 --> 00:27:44,239
Speaker 5: and given the prosecution's missteps up till this point, there

496
00:27:44,240 --> 00:27:47,320
Speaker 5: are added levels of difficulty in it. It's not an

497
00:27:47,320 --> 00:27:50,639
Speaker 5: impossible case, but if you take the highest standard and

498
00:27:50,680 --> 00:27:53,560
Speaker 5: you require a unanimous jury, it's difficult.

499
00:27:54,000 --> 00:27:57,400
Speaker 4: Can you explain how the prosecution's earlier missteps, of which

500
00:27:57,440 --> 00:28:00,000
Speaker 4: there were many, would affect the trial?

501
00:28:01,480 --> 00:28:04,960
Speaker 5: Well? Sure, Number one, it dragged the time out, so

502
00:28:05,080 --> 00:28:08,680
Speaker 5: people's memories fade over time, their certainty over what they

503
00:28:08,720 --> 00:28:12,159
Speaker 5: did and what they saw fade over time, and that

504
00:28:12,800 --> 00:28:17,000
Speaker 5: generally plays against the prosecution because it's the prosecution who's

505
00:28:17,000 --> 00:28:19,800
Speaker 5: got the duty to put on the case. Their witnesses

506
00:28:20,400 --> 00:28:23,879
Speaker 5: are the key, obviously, and that's just the obvious statement.

507
00:28:23,920 --> 00:28:27,040
Speaker 5: So that's one. The other is the general public in

508
00:28:27,080 --> 00:28:31,840
Speaker 5: New Mexico. Even if you find jurors who haven't established

509
00:28:31,880 --> 00:28:35,760
Speaker 5: an opinion one way or the other on Baldwin's guilt,

510
00:28:36,280 --> 00:28:39,480
Speaker 5: the general public in New Mexico knows about these missteps.

511
00:28:39,760 --> 00:28:43,120
Speaker 5: I mean, the prosecutor charged them with a crime that

512
00:28:43,200 --> 00:28:47,520
Speaker 5: came into existence only after the crime occurred, and you know,

513
00:28:47,560 --> 00:28:52,880
Speaker 5: there's a basic constitutional prohibition about expost facto charging, and

514
00:28:53,160 --> 00:28:55,400
Speaker 5: the public in New Mexico knows this. So there may

515
00:28:55,400 --> 00:28:58,600
Speaker 5: be a distrust built in the psychology of the jurors.

516
00:28:58,680 --> 00:29:00,400
Speaker 5: And I think there may be a dist trust in

517
00:29:00,440 --> 00:29:05,000
Speaker 5: the psychology of prosecution witnesses at this point. And so

518
00:29:05,120 --> 00:29:08,959
Speaker 5: I think some of what I'm saying is speculative, it's psychological.

519
00:29:09,080 --> 00:29:12,840
Speaker 5: But on the other hand, anytime you drag a case

520
00:29:12,880 --> 00:29:15,600
Speaker 5: out as the prosecutor, it doesn't work to your benefit.

521
00:29:17,080 --> 00:29:21,040
Speaker 4: The other thing at play here is that jury's love celebrities.

522
00:29:21,240 --> 00:29:23,400
Speaker 4: I mean, we've seen that time and time in.

523
00:29:23,400 --> 00:29:28,360
Speaker 5: Cases they certainly do. I mean, the Beretta case resulted

524
00:29:28,400 --> 00:29:30,800
Speaker 5: in an acquittal. And you know, I just talked about

525
00:29:30,840 --> 00:29:33,400
Speaker 5: that case with my first year criminal law students at

526
00:29:33,440 --> 00:29:37,400
Speaker 5: the law school, and star power is everything. I go

527
00:29:37,520 --> 00:29:40,040
Speaker 5: back to the Jimmy Hoffa trial in Washington, d C.

528
00:29:40,760 --> 00:29:44,600
Speaker 5: So many years ago, and you know, in the middle

529
00:29:44,640 --> 00:29:47,720
Speaker 5: of Haffa's trial, in front of the jury, no less

530
00:29:47,760 --> 00:29:51,360
Speaker 5: than Jesse Owens came up to him and shook his hand. Look,

531
00:29:51,440 --> 00:29:53,960
Speaker 5: that kind of thing plays into the minds of the jurors.

532
00:29:54,400 --> 00:29:57,560
Speaker 5: If Jesse Owens, if other athletes think Jimmy hoff is

533
00:29:57,600 --> 00:30:00,040
Speaker 5: a good guy, then you know, in the psych the

534
00:30:00,040 --> 00:30:02,440
Speaker 5: coology of the jury, Jimmy Hoffer couldn't have done the

535
00:30:02,520 --> 00:30:06,000
Speaker 5: terrible things that you know, Robert Kennedy and the Justice

536
00:30:06,040 --> 00:30:09,720
Speaker 5: Department accused him of doing and it resulted in an acquittal.

537
00:30:09,760 --> 00:30:14,120
Speaker 5: And that's an example of star power. So yeah, people

538
00:30:14,120 --> 00:30:16,320
Speaker 5: love a movie. They don't always love a movie star,

539
00:30:16,480 --> 00:30:20,200
Speaker 5: but they love celebrities. So yes, I mean, whether they're

540
00:30:20,320 --> 00:30:23,720
Speaker 5: NBA players or Hollywood types, there are enough people who

541
00:30:23,760 --> 00:30:25,320
Speaker 5: will love them a star.

542
00:30:26,120 --> 00:30:29,520
Speaker 4: Of course, a defendant does not have to testify in

543
00:30:29,560 --> 00:30:31,840
Speaker 4: his own defense, but in this case, does it seem

544
00:30:31,960 --> 00:30:37,680
Speaker 4: like Baldwin would testify for many reasons yeah.

545
00:30:38,320 --> 00:30:43,200
Speaker 5: I always tell my students if you're a prosecutor, one

546
00:30:43,280 --> 00:30:46,080
Speaker 5: of the things the first things you do when you're

547
00:30:46,120 --> 00:30:50,120
Speaker 5: prepping a case is to pretend that the defendant is

548
00:30:50,160 --> 00:30:53,720
Speaker 5: going to testify, knowing that in about ninety five percent

549
00:30:53,760 --> 00:30:56,240
Speaker 5: of all criminal trials the defendant does not, but you

550
00:30:56,280 --> 00:30:59,280
Speaker 5: have to prep that way. Having said that, in this case,

551
00:30:59,320 --> 00:31:02,040
Speaker 5: I would say it's a fifty to fifty chance he testifies.

552
00:31:02,720 --> 00:31:06,080
Speaker 5: And the reason is he's already made a statement that

553
00:31:06,120 --> 00:31:10,560
Speaker 5: he didn't depress the trigger, and I think if he

554
00:31:10,640 --> 00:31:13,880
Speaker 5: holds true to that and he testifies, it works to

555
00:31:13,920 --> 00:31:18,280
Speaker 5: his favor. You know, one reason why defendants don't testify

556
00:31:19,080 --> 00:31:22,280
Speaker 5: is there are things that the judge has already suppressed

557
00:31:22,360 --> 00:31:25,880
Speaker 5: that are damaging to the particular defendant. I don't think

558
00:31:25,920 --> 00:31:29,440
Speaker 5: there's anything damaging to Baldwin that he would have to

559
00:31:29,480 --> 00:31:32,640
Speaker 5: be afraid of on cross examination. And if you look

560
00:31:32,680 --> 00:31:36,040
Speaker 5: at that calculus, then why wouldn't he testify exactly?

561
00:31:36,080 --> 00:31:39,160
Speaker 4: And also he's very articulate, another thing in his favor.

562
00:31:39,600 --> 00:31:43,200
Speaker 4: Hand of Guccieriraz read the Film's Armorer is going on

563
00:31:43,320 --> 00:31:47,560
Speaker 4: trial next month. Will Balwin's attorneys learn a lot from

564
00:31:47,560 --> 00:31:50,640
Speaker 4: that trial? Sort of a preview of the prosecution's case

565
00:31:50,960 --> 00:31:52,560
Speaker 4: or how the prosecution works.

566
00:31:53,080 --> 00:31:57,160
Speaker 5: Absolutely, but they'll also learn not just how the prosecution

567
00:31:57,360 --> 00:32:00,920
Speaker 5: works in the preview of the prosecution's case, but they'll

568
00:32:00,920 --> 00:32:05,560
Speaker 5: also learn whether Hannah Goudierres will end up being a

569
00:32:05,600 --> 00:32:10,480
Speaker 5: witness for the prosecution against Baldwin or whether what she

570
00:32:10,640 --> 00:32:15,680
Speaker 5: has to say would absolve Baldwin if she testifies, and

571
00:32:15,760 --> 00:32:18,200
Speaker 5: they may call her as a witness. So if she's

572
00:32:18,240 --> 00:32:21,720
Speaker 5: acquitted in this trial, and there's a possibility that she

573
00:32:21,800 --> 00:32:25,400
Speaker 5: would be acquitted, she could depending on how the trial goes,

574
00:32:25,400 --> 00:32:27,320
Speaker 5: she could end up being a witness for one side

575
00:32:27,400 --> 00:32:29,920
Speaker 5: or the other. But I think they'll learn a lot,

576
00:32:29,960 --> 00:32:32,080
Speaker 5: and I think that at least one of them will

577
00:32:32,080 --> 00:32:33,320
Speaker 5: be sitting through the trial.

578
00:32:33,840 --> 00:32:36,360
Speaker 4: Are the charges against her the same as the charges

579
00:32:36,400 --> 00:32:37,640
Speaker 4: against Baldwin.

580
00:32:38,040 --> 00:32:41,040
Speaker 5: Well, at their roots they are, but they're different theories

581
00:32:41,120 --> 00:32:43,720
Speaker 5: to get to guilt, you know. So she had the

582
00:32:43,840 --> 00:32:47,680
Speaker 5: duty to secure the firearms, but her duty was different

583
00:32:48,080 --> 00:32:52,320
Speaker 5: than Baldwin's. As the armorers the primary gun handler.

584
00:32:53,320 --> 00:32:57,160
Speaker 4: The sentence if he's convicted is eighteen months, but the

585
00:32:57,160 --> 00:33:01,600
Speaker 4: assistant director who pleaded no contest got six months probation.

586
00:33:02,120 --> 00:33:04,840
Speaker 4: So if he's convicted, would you likely get probation?

587
00:33:06,000 --> 00:33:08,120
Speaker 5: I would say so, you know, that's out of the

588
00:33:08,200 --> 00:33:12,760
Speaker 5: hands of the district attorney. That falls into the decision

589
00:33:12,800 --> 00:33:17,120
Speaker 5: of the presiding judge at that point. I don't think

590
00:33:17,160 --> 00:33:20,480
Speaker 5: that mister Baldwin has a criminal record, and as a

591
00:33:20,520 --> 00:33:24,760
Speaker 5: first time offender of a crime that doesn't really have

592
00:33:24,960 --> 00:33:28,440
Speaker 5: any malice to it because he didn't intend for it

593
00:33:28,520 --> 00:33:31,320
Speaker 5: to happen. I would be surprised if he got any

594
00:33:31,400 --> 00:33:33,840
Speaker 5: jail time. I mean, he may be sentenced to jail time,

595
00:33:33,880 --> 00:33:37,960
Speaker 5: but then the judge abates the time on good behavior

596
00:33:38,000 --> 00:33:40,480
Speaker 5: or something like that. But I would think probation is

597
00:33:40,520 --> 00:33:41,920
Speaker 5: most likely in this case.

598
00:33:42,680 --> 00:33:45,120
Speaker 4: You know, we were talking about the missteps of the

599
00:33:45,160 --> 00:33:49,960
Speaker 4: first prosecution team, and my question is whether the current

600
00:33:50,040 --> 00:33:56,040
Speaker 4: prosecution team is any better because apparently guccierraz reads attorneys

601
00:33:56,080 --> 00:34:00,600
Speaker 4: claim that the prosecutor inadvertently handed over hundreds of text

602
00:34:00,640 --> 00:34:05,080
Speaker 4: messages between Gucciera's read and her lawyer to a key

603
00:34:05,120 --> 00:34:06,240
Speaker 4: witness last July.

604
00:34:06,720 --> 00:34:09,560
Speaker 5: If that's true, it's a major misstep, and you know,

605
00:34:09,880 --> 00:34:13,160
Speaker 5: it's carelessness of the highest degree if it's true. And

606
00:34:13,960 --> 00:34:16,759
Speaker 5: if it's true, it I would say, is it's evidence

607
00:34:16,880 --> 00:34:21,839
Speaker 5: that there's been a failure once again among the prosecution team.

608
00:34:21,840 --> 00:34:26,319
Speaker 5: I'd like to think that the succeeding prosecution team is

609
00:34:26,440 --> 00:34:30,120
Speaker 5: handling their duties with a closer eye and a greater

610
00:34:30,239 --> 00:34:32,200
Speaker 5: degree of care. But I don't know.

611
00:34:32,560 --> 00:34:35,320
Speaker 4: It just seems like this case, it's one problem after

612
00:34:35,360 --> 00:34:35,759
Speaker 4: the other.

613
00:34:36,080 --> 00:34:39,120
Speaker 5: Well, you know, all I can say is that there

614
00:34:39,120 --> 00:34:41,760
Speaker 5: seems to be a theme in this country right now

615
00:34:42,200 --> 00:34:45,520
Speaker 5: that prosecutors are making cases more difficult than they need

616
00:34:45,600 --> 00:34:48,840
Speaker 5: to be based on their personal actions and the trial

617
00:34:49,239 --> 00:34:52,000
Speaker 5: as opposed to the evidence. And you see that with

618
00:34:52,120 --> 00:34:56,839
Speaker 5: the Trump case in Atlanta, you know, with this allegation

619
00:34:57,040 --> 00:35:02,120
Speaker 5: of an unprofessional relationship between the elected district attorney and

620
00:35:02,160 --> 00:35:06,520
Speaker 5: the lead prosecutor on that case, and here you see

621
00:35:06,760 --> 00:35:10,960
Speaker 5: mishandling of evidence, the text messages and the like. If

622
00:35:11,000 --> 00:35:14,840
Speaker 5: the allegation's true, it's making a case a lot harder

623
00:35:14,880 --> 00:35:15,680
Speaker 5: than it should have been.

624
00:35:16,360 --> 00:35:18,080
Speaker 4: Well, I have you here. Let me ask you, what

625
00:35:18,160 --> 00:35:20,240
Speaker 4: do you think is going to happen in the Atlanta case.

626
00:35:21,080 --> 00:35:25,480
Speaker 5: It doesn't necessarily mean the trial is over and can't

627
00:35:25,480 --> 00:35:27,840
Speaker 5: go forward. In fact, I don't think there's an issue

628
00:35:27,880 --> 00:35:31,960
Speaker 5: with going forward. But what it means is that she

629
00:35:32,120 --> 00:35:35,680
Speaker 5: has a huge cloud over her office. That was self induced.

630
00:35:36,280 --> 00:35:39,600
Speaker 5: And I think he's a very, very gifted civil litigator,

631
00:35:40,239 --> 00:35:43,400
Speaker 5: but this is not his experience. You know, he should

632
00:35:43,400 --> 00:35:45,279
Speaker 5: not have been the one who was picked. You could

633
00:35:45,360 --> 00:35:48,400
Speaker 5: look across the state of Georgia and there were probably

634
00:35:48,520 --> 00:35:53,600
Speaker 5: far more talented and experienced criminal lawyers to pick. And

635
00:35:53,680 --> 00:35:56,439
Speaker 5: so yeah, it's a self inflicted wound that should never

636
00:35:56,480 --> 00:35:57,120
Speaker 5: have happened.

637
00:35:57,520 --> 00:35:59,480
Speaker 4: I know a lot of legal experts who agree with

638
00:35:59,520 --> 00:36:01,719
Speaker 4: you on that. Josh thanks so much for giving us

639
00:36:01,760 --> 00:36:05,560
Speaker 4: your insights. That's Professor Joshua Castenberg of the University of

640
00:36:05,560 --> 00:36:08,480
Speaker 4: New Mexico Law School. And that's it for this edition

641
00:36:08,520 --> 00:36:11,560
Speaker 4: of the Bloomberg Law Podcast. Remember you can always get

642
00:36:11,560 --> 00:36:14,279
Speaker 4: the latest legal news by subscribing and listening to the

643
00:36:14,320 --> 00:36:18,360
Speaker 4: show on Apple Podcasts, Spotify, and at Bloomberg dot com,

644
00:36:18,400 --> 00:36:22,640
Speaker 4: slash podcast, Slash Law. I'm June Grosso and this is

645
00:36:22,680 --> 00:36:23,279
Speaker 4: Bloomberg