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

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Speaker 1: I'm going to need you to walk me through what happened.

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Speaker 2: Part of this process is the two of you reconnecting,

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Speaker 2: growing closer as brothers.

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Speaker 3: Eric and I killed our parents together, so I'd say

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Speaker 3: that makes us pretty close. Eric, I know that they

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Speaker 3: would be proud of us.

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Speaker 2: Millions of people watched the Netflix series Monsters, and then

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Speaker 2: Netflix released the documentary The Menendez Brothers. So about three

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Speaker 2: decades after Eric and Lyle Menendez were sentenced to life

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Speaker 2: in prison without parole for the brutal murders of their parents,

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Speaker 2: their case was being talked about again and reframed, with

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Speaker 2: their claims of molest station seeming more compelling to than

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Speaker 2: in the nineties. So now the Menendez brothers can see

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Speaker 2: a path to walking out of prison thanks to the

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Speaker 2: resentencing recommendation of La District Attorney George Gascone.

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Speaker 4: And I do believe that the brothers was subjected to

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Speaker 4: a tremendous amount of ysfunction in the home in molisation.

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Speaker 4: We're very sure, not only that the brothers have rehabilitated

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Speaker 4: and that they will be safe to be reintegrator in

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Speaker 4: our society, but that they have paid their dues not

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Speaker 4: only for the crimes that they committed, because of all

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Speaker 4: the other things they have done to improve the life

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Speaker 4: of so many others.

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Speaker 2: Gascone is recommending that the brothers get a new sentence

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Speaker 2: of fifty years to life, and because they were under

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Speaker 2: twenty six years old at the time of the murders,

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Speaker 2: they'd be eligible for parole immediately. But the brothers have

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Speaker 2: several obstacles ahead before they can walk out of prison.

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Speaker 2: A judge, the parole board, and the governor of California

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Speaker 2: joining me is La. Trial attorney Dave Ring of Taylor

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Speaker 2: Ring the DA said his office was split on the case.

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Speaker 2: The Menendez family is split on what to do. What

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Speaker 2: led to his decision to call for resentencing.

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Speaker 5: There's a lot of factors that go into that. You know,

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Speaker 5: George Gascone came to Los Angeles as a district attorney

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Speaker 5: a few years ago on this platform of being a

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Speaker 5: progressive district attorney, of trying to do away with mass incarcerations,

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Speaker 5: you know, really a big reformer of the criminal process,

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Speaker 5: rehabilitation instead of punishment. That was his platform, and so

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Speaker 5: this case, if you believe George gascon and this was

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Speaker 5: a case where he felt that these brothers had served,

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Speaker 5: you know, thirty five years for a crime that maybe

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Speaker 5: they had some plausible excuse for committing, and he made

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Speaker 5: it public that he felt it was time for them

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Speaker 5: to be re sentenced so that they could be possibly

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Speaker 5: placed on role.

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Speaker 2: The brother's first trial ended in a hung jury, actually

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Speaker 2: two hung juries, because there were two separate juries deciding

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Speaker 2: the case for each brother. What might have made the

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Speaker 2: difference in the second trial where they were convicted.

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Speaker 5: No doubt about it, It was the evidence involving sexual abuse.

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Speaker 5: So in the first trial, which was televised and which

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Speaker 5: was huge news not only Los Angeles but across the country.

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Speaker 5: I mean that was a big trial, there was a

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Speaker 5: lot of evidence that was allowed that the brothers had

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Speaker 5: been allegedly sexually abused by their dad, emotionally and physically

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Speaker 5: abused by both parents, and that that was why they

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Speaker 5: committed this horrific murder of their parents. Two hung juries.

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Speaker 5: So then trial number two, and you know, there was

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Speaker 5: some backlash about that outcome that maybe, you know, somehow

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Speaker 5: they were getting away with these horrible crimes, and so,

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Speaker 5: for whatever reason, the trial court really curtailed the evidence

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Speaker 5: in the second trial, there is very little about being

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Speaker 5: sexually abused, and it really focused on their motivations and

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Speaker 5: all the acts they committed that showed this was a

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Speaker 5: planned murder. And so in the second trial you got

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Speaker 5: two convictions for murder and they were sentenced to life

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Speaker 5: in prison without any possibility for parole, which brings us

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Speaker 5: up to today.

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Speaker 2: Times have change, and the DA sort of referred to

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Speaker 2: this the years, chipping away at the stereotypes that existed

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Speaker 2: more than thirty years ago. Mark Geragos, the lawyer for

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Speaker 2: the brothers, said, if they were the Menendez sisters, they

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Speaker 2: would not be in custody. We have evolved, it is time.

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Speaker 2: How have changing attitudes affected this decision.

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Speaker 5: Our society has absolutely viewed children who are abused in

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Speaker 5: a far far different light than they did thirty or

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Speaker 5: forty years ago, and particularly boys who are being abused,

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Speaker 5: no doubt about, and so that's made a huge role

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Speaker 5: in this decision coming about now that these boys should

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Speaker 5: possibly have the chance to be freed from prison and

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Speaker 5: be placed on prol and come out in the community again.

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Speaker 5: And of course he had all the support of the

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Speaker 5: Netflix shows and other shows that kind of you know,

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Speaker 5: supported their fact that they were abused and they had

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Speaker 5: a plausible excuse for this, and we should forgive them

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Speaker 5: for thirty five years in prison. And he has big

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Speaker 5: celebrities like Kim Kardashian supporting them, and so I think

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Speaker 5: that's a big factor in what brought this about. A

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Speaker 5: huge factor on the flip side, however, that's if you

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Speaker 5: believe they were abused. You brought it up at the

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Speaker 5: beginning of the interview that there's really two factions out there,

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Speaker 5: the faction that thinks they should be released and the

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Speaker 5: ones that think they should stay in prison till they die.

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Speaker 5: And so the reason why there's a big group out

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Speaker 5: there that thinks they should not be released is because

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Speaker 5: if you go back and look at the evidence in

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Speaker 5: these trials, it's a little bit sketchy on the sexual abuse.

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Speaker 5: You know, there's a lot of reasons to believe that

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Speaker 5: this was a made up defense. At the criminal.

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Speaker 2: Trials, there was new evidence that played a part in

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Speaker 2: this as.

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Speaker 5: Well, and that's also the reason why we're here today.

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Speaker 5: And so what came about is really two things.

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Speaker 4: It was an.

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Speaker 5: Allegation a couple of years ago from a former boy

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Speaker 5: band member the band was Menudo, they were big in

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Speaker 5: the eighties and nineties, and he came forward recently and

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Speaker 5: said that he had been sexually abused by the brother's dad.

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Speaker 5: The second piece of evidence was a letter that Eric

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Speaker 5: Mendendez had apparently written months before the murders. He'd written

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Speaker 5: it to his cousin. In the letter, it made mention

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Speaker 5: that he was scared of his dad and the dad

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Speaker 5: was coming into the room at night of molesting him. Now,

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Speaker 5: the thing about the letter was that letter never surfaced

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Speaker 5: ever during the criminal case, and in fact only surfaced

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Speaker 5: I think in twenty fifteen. And so there's questions about

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Speaker 5: that letter as well as to whether or not that

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Speaker 5: letter is truly a letter that was written eight months

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Speaker 5: before the murders, or was it written at some point

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Speaker 5: long after the murders and used for this purpose. A

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Speaker 5: lot of questions, a lot of unanswered questions.

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Speaker 2: The DA stressed the rehabilitation of the brothers and that

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Speaker 2: plays a huge role in deciding on resentencing.

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Speaker 5: It definitely does. And so the LA District Attorney's position

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Speaker 5: on this is that human ends brothers have served close

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Speaker 5: to thirty five years in prison, that they apparently have

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Speaker 5: been model citizens in prisons. They've shown, to some extent remorse,

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Speaker 5: they've never gotten in any trouble in prison, and so

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Speaker 5: his position is, hey, look it's been thirty five years.

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Speaker 5: If they'd been sentenced to fifty years to life, they'd

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Speaker 5: absolutely right now be eligible for parole because they were

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Speaker 5: youthful offenders when it happened. California has a lot it says,

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Speaker 5: if you're a youthful offender, you have a shot at

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Speaker 5: bull after a certain number of years, And that's Gascone's

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Speaker 5: whole platform. His whole platform is, you know, we don't

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Speaker 5: keep people in prison for no good reason if we

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Speaker 5: think they've served a sufficient time and they've somehow been rehabilitated.

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Speaker 2: On that point, critics accuse Gascon of playing politics. He's

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Speaker 2: facing a difficult reelection, trailing his opponent by double digits apparently,

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Speaker 2: and he said that his office was inundated with calls

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Speaker 2: after the Netflix series so much so that they couldn't

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Speaker 2: handle it. So is he playing politics?

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Speaker 5: Well, there's a big crowd out there that thinks he

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Speaker 5: absolutely is playing politics. And their position is this that

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Speaker 5: George Gascone came in to try to change things in

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Speaker 5: Los Angeles. Four years ago, and at least a big

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Speaker 5: part of the community here in Los Angeles thinks he

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Speaker 5: failed miserably, that he's soft on crime, that his policies

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Speaker 5: have made things worse here. So he's up for reelection

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Speaker 5: and he's so far down in the polls that people

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Speaker 5: think he really doesn't have a shot for winning, and

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Speaker 5: so they think that what he did was he had

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Speaker 5: a chance here to garner a whole lot of publicity

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Speaker 5: with this Menendez decision, and this was a chance for

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Speaker 5: him to be covered by every major media outlet and

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Speaker 5: maybe get some goodwill and maybe get some votes. That's

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Speaker 5: the position of why it might be a political decision.

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Speaker 6: At this point.

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Speaker 2: The Menandez brothers still have a long way to go

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Speaker 2: before they can be released from prison. A judge will

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Speaker 2: have to agree with the DA's resentencing recommendation after a hearing,

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Speaker 2: then they'll have to face the parole board, and finally

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Speaker 2: the governor can intervene. What do you think their prospects

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Speaker 2: are for running the gauntlet, so to speak?

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Speaker 5: You know, I think when you take everything into consideration,

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Speaker 5: I think their prospects are pretty good. Because the district

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Speaker 5: attorney that office has backed the resensing. I think when

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Speaker 5: the judge handles this, I think they will be resent

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Speaker 5: and if they're resentenced, they basically eliminate the life without

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Speaker 5: possibility of role part of it. Well, then they're automatically

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Speaker 5: under the law eligible for parole. So then it goes

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Speaker 5: to the parole board and they're going to look at

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Speaker 5: all sorts of factors, and again I think they have

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Speaker 5: a pretty decent shot of having role granted. Then the

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Speaker 5: final step is the Governor of California can veto that decision,

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Speaker 5: and I've seen him do it recently on a big

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Speaker 5: case where the parole board recommended parole for a convicted

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Speaker 5: murderer and despite public pressure, governments and went and vetoed

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Speaker 5: that decision. So it's not a sure thing for the

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Speaker 5: Menendez brothers that they're going to get out, but I

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Speaker 5: think their prospects are looking pretty good. I think they

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Speaker 5: have a strong chance that they'll run the gauntlet and

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Speaker 5: in a few months, maybe three to six months, maybe

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Speaker 5: a little longer, but not a huge amount of time,

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Speaker 5: they could be free men.

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Speaker 2: Thanks so much, Dave. That's LA trial attorney Dave Ring.

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Speaker 2: The next step in the process is a hearing before

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Speaker 2: an LA judge on the DA's re sentencing recommendation. All

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Speaker 2: arguments and evidence will be admitted at that time and

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Speaker 2: the judge will make a decision based on that. Coming

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Speaker 2: up next on the Bloomberg Las Show, the trial of

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Speaker 2: a Marine veteran accused in the choke cold death of

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Speaker 2: a homeless man on a New York City subway car

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Speaker 2: last year. I'm June Grosso and you're listening to Bloomberg.

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Speaker 7: I was scared for myself. When I looked around, I

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Speaker 7: saw women and children. He was yelling in their faces, saying,

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Speaker 7: saying these threats. I couldn't just sit still.

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Speaker 2: Jury's selection began this week in the trial of Daniel Perry,

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Speaker 2: the Marine Corps veteran charged with recklessly causing the death

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Speaker 2: of a homeless man by putting him in a deadly

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Speaker 2: choke hold on a New York City subway train last year.

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Speaker 2: The death of Jordan Neely ignited a firestorm of protests, debate,

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Speaker 2: and division across the city. Was Panny a good samaritan

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Speaker 2: or vigilante? Penny says he was trying to protect himself

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Speaker 2: and the other passengers because Neelie was threatening them.

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Speaker 7: The three main threats that he repeated over and over

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Speaker 7: was I'm going to kill you, I'm prepared to go

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Speaker 7: to jail for life, and I'm willing to die.

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Speaker 2: Joining me is criminal defense attorney Jeremy Salande, a former

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Speaker 2: Manhattan prosecutor. How much of this debate about homelessness and

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Speaker 2: mental illness and safety on the subway? How much will

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Speaker 2: that bleed into the trial?

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Speaker 1: These are issues that are biggest hit home for many

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Speaker 1: New Yorkers. But what happens outside the courtroom should remain

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Speaker 1: outside the court. What happens inside the courtroom should be

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Speaker 1: regulated by the four corners of the law. I would

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Speaker 1: not expect that any of it should come into the trial.

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Speaker 1: The question is not what Jordan Neely did or didn't

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Speaker 1: do eight weeks, once and years before a criminal record

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Speaker 1: of the health builders being homeless in that moment in time,

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Speaker 1: In that moment in time, was Dan Penny justified and

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Speaker 1: taking action to subdue Jordan Neeli and ultimately causes death,

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Speaker 1: money recklessly and management has the legs by the prosecutors.

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Speaker 2: There's a four minute video of Penny pinning Neely to

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Speaker 2: the ground and placing him in a choke hold while

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Speaker 2: two other passengers helped to restrain Neely and both sides

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Speaker 2: say they're going to use that, How will they use

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Speaker 2: it differently?

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Speaker 1: Well, you know, I think that the defensive term to

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Speaker 1: try to show that what Penny did was very reasonable

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Speaker 1: in that moment and he's holding and pinning this individual

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Speaker 1: to the ground, and you know there's other people who

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Speaker 1: are helping him do something because they're equally concerned about

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Speaker 1: the volatility of the immediate presence bones or that not

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Speaker 1: threat on lives of people on the subway. Whereas the

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Speaker 1: prosecution is going to show a guy who is subdued

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Speaker 1: and the hold around the neck in the true hold

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Speaker 1: and probably concentrate more on that which, ultimately, if you

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Speaker 1: believe in their theory, and they proved me on a

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Speaker 1: reasonable about cause him to lose consciousness and ultimately pass

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Speaker 1: sitting aside whether or not law enforcement did CPR and

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Speaker 1: should have done CPR. So it's the same video, obviously,

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Speaker 1: But what is he going to try to demonstrate it

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Speaker 1: was reasonable in the moment. The other words, we're going

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Speaker 1: to try to demonstrate it was agrigent, reckless, and beyond

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Speaker 1: the panel.

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Speaker 2: If you will nearly reportedly had mental health and drug

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Speaker 2: addiction issues. Will the defense be allowed to bring in

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Speaker 2: his psychiatric history and the fact that synthetic cannabinoids known

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Speaker 2: as K two were found in his system.

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Speaker 1: First of all, Max Wiley and Judge Wiley's has been

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Speaker 1: around the block in terms of the criminal and criminal

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Speaker 1: justice for years. He was actually my deputy chief when

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Speaker 1: I was a prosecutor, and it's been on the bench

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Speaker 1: a long time. I trust it he'll make the right call.

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Speaker 1: And in this particular case, I think you have to

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Speaker 1: setify the noise. And again, not looking at his criminal history,

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Speaker 1: not looking at his mental health issues, was it relevant

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Speaker 1: in that moment to the determination and the reasonable person analysis,

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Speaker 1: if you will, of Daniel Penny when he observed this

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Speaker 1: man throwing down his jacket saying something along the lines

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Speaker 1: of I don't care if I go to jail or

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Speaker 1: whatever you might have said, and the reaction of people,

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Speaker 1: So you have to limit it because you can't twist

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Speaker 1: the jury and provide evidence that is not relevant instead

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Speaker 1: of determination and decision making. Daniel Penny didn't know about

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Speaker 1: the prior history. Daniel Penny didn't know about the mental illness,

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Speaker 1: the K two cause, and really there act in a

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Speaker 1: certain way, maybe that could be relevant, but what did

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Speaker 1: people see? What does the video show and demonstrate and

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Speaker 1: what happened in that moment is really important factor.

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Speaker 2: Not days weeks, months before, the Medical Examiner's office found

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Speaker 2: that he died from compression to his neck as a

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Speaker 2: result of the choke hold and the manner was homicide.

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Speaker 2: The defense said it's going to attack the emmy's report

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Speaker 2: and bring up potential other causes of Neelie's death, including

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Speaker 2: high levels of K two in his bloodstream. That usually

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Speaker 2: works in movies. Does it work in the courtroom.

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Speaker 1: It can work in the courtroom. I don't necessarily believe

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Speaker 1: the cakes was relevant to the reaction and behavior of

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Speaker 1: long A Penny, but it can absolutely be relevant to

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Speaker 1: try to establish that the K two may have been

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Speaker 1: that proximate natural cause of death to Jordanneeling, and I

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Speaker 1: assume we'll have an expert to try to establish this.

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Speaker 1: I believe that big concern here is you have to

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Speaker 1: make sure that you separate those jurors who have preconceived notion,

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Speaker 1: whether it's race, whether it's politics, whether it's some way safety,

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Speaker 1: take them out of the equation so that that jury

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Speaker 1: objectively analyzes the evidence that's presented in that courtroom. So

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Speaker 1: it does work it absolutely can work. It's not an

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Speaker 1: easy task or an easy lift, especially with such a

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Speaker 1: charged case. From the emotional perspective.

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Speaker 2: Both sides are going to call witnesses who are on

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Speaker 2: the train, and it appears that their level of concern

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Speaker 2: about Neely's behavior varied. Some said they were afraid, others

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Speaker 2: said no, they see this all the time on the subway.

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Speaker 2: How important are their accounts?

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Speaker 1: The words that the user are going to be critically

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Speaker 1: important because that video only shows section in time. It

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Speaker 1: doesn't show that imminent threat because remembered by law, there

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Speaker 1: needs to be that imminent threat of that serious physical

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Speaker 1: injury or death even to allow for the justification defense

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Speaker 1: or self defense if you will yourself or other people.

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Speaker 1: So beyond that video, how do these people perceive those moments?

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Speaker 1: How do they react? And I'd be very concerned, as

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Speaker 1: Daniel Penny's counsel and Daniel Penny personally, if witnesses are

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Speaker 1: going to call up and say, you know what, you

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Speaker 1: see this all the time, You put your head down.

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Speaker 1: I'm a New Yorker, I've been around the block, I'm

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Speaker 1: ridden these subways later at night, you just ignore that

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Speaker 1: moment and the thread if he will goes away. Because

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Speaker 1: remember too, it's not about just being scared or nervous

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Speaker 1: or anxious. It's not a canvas or textansponder of riding

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Speaker 1: the New York Subway photo or a real New York

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Speaker 1: standard or just a reasonable standard. What was observed in

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Speaker 1: the moment. So the words and the specificity of why

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Speaker 1: and how they believe that they were physical or serious

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Speaker 1: physical danger in a death. That's so important, so important,

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Speaker 1: not just that I'm scared.

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Speaker 2: What about the fact that he was a trained marine?

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Speaker 2: Does that come in?

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Speaker 1: It very well can come in if there is evidence

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Speaker 1: that he knew and was a where this type of

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Speaker 1: choke hold and how to apply it and use it,

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Speaker 1: and the potential consequences of it, because remember, you know

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Speaker 1: it's not an intentional climate. But did he know of

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Speaker 1: these risks? Jordan Eily and then he just really ignored

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Speaker 1: those risks? Was there a substantial likelihood or risk that

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Speaker 1: his actions were going to cause another person's death and

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Speaker 1: he ignored it? And if Daniel Penny was aware and

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Speaker 1: knew and had that skill, fit I believe that I

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Speaker 1: should come in. It should be know.

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Speaker 2: What does a prosecution need to prove to get a

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Speaker 2: manslaughter conviction.

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Speaker 1: When you're child of man's daughter in the second degree,

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Speaker 1: when the prosecution has to igomige is that you recklessly

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Speaker 1: cause the death to another person. Reckless is that standard,

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Speaker 1: whereas criminally negligent, and that's the lower felony, that's the

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Speaker 1: class efelony that when you commit these acts, you failed

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Speaker 1: to sort of perceive that there was this real, substantial

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Speaker 1: risk that your actions would cause that other person's death.

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Speaker 1: So the recklessness is different, and it's more severe than

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Speaker 1: the lesser, if you will, of criminal negligence.

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Speaker 2: So the question looming over the trial, like every trial, basically,

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Speaker 2: is whether he's going to testify himself, and one of

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Speaker 2: his lawyers said he'd be a great witness. We anticipate

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Speaker 2: that he will, but that will depend on how the

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Speaker 2: trial goes. Does he almost have to take this stand

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Speaker 2: to explain his state of mind at the time.

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Speaker 1: Defense attorneys such as myself, we don't always show our

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Speaker 1: cards like the prosecution does at this point in the

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Speaker 1: trial process. A lot of this hinges on that witness testimony. Yes,

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Speaker 1: that video was important, but I think that video can

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Speaker 1: work against Daniel Penny too, because you know, if somebody's

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Speaker 1: quote unquote squirming as was used in the terminology by

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Speaker 1: Daniel Penny, and that's not a favorable term. And for

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Speaker 1: all those minutes to hold that person there, what are

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Speaker 1: these witnesses going to say? Are they going to articulate

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Speaker 1: how and why they're feel for for their life to

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Speaker 1: their physical safety, Because if they don't, then Daniel Penny

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Speaker 1: has to testify. If they do and it's clear of

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Speaker 1: this imminent threat danger, then maybe Daniel Penny doesn't. But

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Speaker 1: I would expect him to. OU expect he will testify

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Speaker 1: because he probably will come across as a sympathetic person,

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Speaker 1: not trying to attention the hurt another man, but doing

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Speaker 1: what he thought was the right thing in that moment.

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Speaker 1: True or not, that's the jury to decide, but I

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Speaker 1: would expect that he would testify.

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Speaker 2: Police interviewed him on the day that Neely died, but

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Speaker 2: then released him. That was criticized by some elected officials

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Speaker 2: and protesters demanded that Canny be arrested. Will that come in.

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Speaker 1: So issues of statements that are made, whether you're in

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Speaker 1: custody and it's an interrogation as a matter of law,

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Speaker 1: those issues have already been litigate. It could very well

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Speaker 1: come in, and I would expect it to come in

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Speaker 1: that she was questioned and arrested only after the fact,

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Speaker 1: because the prosecution wants to tell a complete story. They

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Speaker 1: don't want to seem like they're hiding the ball and misrepresenting.

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Speaker 1: They want to explain why that occurs. Because if I'm

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Speaker 1: the defense, I want to seize on that and say,

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Speaker 1: you guys, didn't arrest me initiative, Look at only because

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Speaker 1: there's political pressure because of his outside voices and the

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Speaker 1: issues of race and the issues of subway safety and politics.

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Speaker 1: Did my client get arrested? And that's not just or justice.

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Speaker 1: So I would expect to come in with both sides

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Speaker 1: clients to rationalize a reason why. And I will say

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Speaker 1: that this is not incredibly atypical. Certainly most people are

390
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Speaker 1: arrested in a moment, but there are times that not

391
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Speaker 1: only does the NYPD not make an arrest initially, there

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Speaker 1: are also times when prosecutors offices do what's called a

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Speaker 1: DP or a decline to prosecute a case even after

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Speaker 1: the process has started, for further investigation or to later

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Speaker 1: make an arrest. So this is not necessarily typical, but

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Speaker 1: it's not atypical either.

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Speaker 2: So what kind of juror are you looking for if

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Speaker 2: you're the prosecutor, and what kind if you're the defense.

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Speaker 1: Starting with the prosecution, I'm looking for in real New Yorker,

400
00:21:48,440 --> 00:21:51,720
Speaker 1: which is the opposite of what the defense is looking for.

401
00:21:52,000 --> 00:21:56,760
Speaker 1: I don't want my Florida, Texas, California, Iowa, trans I'm

402
00:21:56,800 --> 00:21:59,520
Speaker 1: not looking for the guy or gal who's been around

403
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Speaker 1: the block once because they had to walk to school

404
00:22:02,840 --> 00:22:04,720
Speaker 1: or their new job and they're so excited to be

405
00:22:04,720 --> 00:22:07,440
Speaker 1: in the big city, you know, bright eyed and excited,

406
00:22:07,760 --> 00:22:10,040
Speaker 1: or maybe mom and dad are paying the rents. That's

407
00:22:10,040 --> 00:22:12,640
Speaker 1: the person that the defense wants, because the defense wants

408
00:22:12,680 --> 00:22:16,360
Speaker 1: that overreacting individual who is not familiar with the subway life,

409
00:22:16,480 --> 00:22:20,240
Speaker 1: is not familiar with quote unquote goffing. Manhattanites are very

410
00:22:20,320 --> 00:22:22,440
Speaker 1: very different who rid in that subway and live their

411
00:22:22,440 --> 00:22:25,959
Speaker 1: lives to better temper jur that we would expect the

412
00:22:26,000 --> 00:22:28,040
Speaker 1: prosecution to want to take, you know, to put your

413
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Speaker 1: head down, walk away, This too shall pass.

414
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Speaker 2: Would you rather be the prosecutor here or the defense attorney?

415
00:22:33,280 --> 00:22:35,840
Speaker 1: If I had to take a side, which really sounds

416
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Speaker 1: awkward saying that, because this is such a tragic case

417
00:22:38,440 --> 00:22:40,240
Speaker 1: of matter of rest but if I had to take

418
00:22:40,280 --> 00:22:42,879
Speaker 1: a side from a legal perspective, I would want to

419
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Speaker 1: work aside of the prosecution. I think this is an

420
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Speaker 1: uptill climent to what I have seen. Granted to process

421
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Speaker 1: percent every single person, every single time, and the process

422
00:22:52,280 --> 00:22:56,040
Speaker 1: hasteone its course, will see the evidence. But that video

423
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Speaker 1: is not some overwhelming piece of evidence that would say,

424
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Speaker 1: oh my gosh, you know, was it backless or languaging?

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Speaker 1: Remember attentionally and those witnesses on the subway. From what

426
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Speaker 1: I have read, there's nothing so overwhelming, Oh my gosh,

427
00:23:08,760 --> 00:23:10,760
Speaker 1: you know, if you've ridden the subway in New York,

428
00:23:11,080 --> 00:23:15,200
Speaker 1: this happened. This happened. It's terrible. It's sad in terms

429
00:23:15,240 --> 00:23:19,680
Speaker 1: of people having episodes or manic episodes, or misbehavior or

430
00:23:19,720 --> 00:23:23,160
Speaker 1: even getting aggressive and violent. But that's something we see,

431
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Speaker 1: and I would not want to be on the side

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Speaker 1: of Daniel Petty. But let the jury decide that. Let's

433
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Speaker 1: flip through process from course.

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Speaker 2: After five days of jury selection, not a single juror

435
00:23:32,720 --> 00:23:38,120
Speaker 2: has been seated yet, and interestingly, the judge has decided

436
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Speaker 2: that the jury will remain anonymous due to threats made

437
00:23:42,359 --> 00:23:46,640
Speaker 2: to the prosecution and defense. The trial itself is expected

438
00:23:46,680 --> 00:23:49,639
Speaker 2: to take six weeks. Thanks so much for joining us

439
00:23:49,680 --> 00:23:53,960
Speaker 2: on the show, Jeremy. That's criminal defense attorney Jeremy Salande

440
00:23:54,119 --> 00:23:57,320
Speaker 2: coming up next on The Bloomberg Law Show. The stars

441
00:23:57,359 --> 00:24:01,960
Speaker 2: of the critically acclaimed Franco Zepharelli movie Romeo and Juliet

442
00:24:02,200 --> 00:24:06,000
Speaker 2: file lawsuits more than fifty years after the film's release

443
00:24:06,280 --> 00:24:10,280
Speaker 2: over underage nude scenes. I'm June Grosso and you're listening

444
00:24:10,320 --> 00:24:11,000
Speaker 2: to Bloomberg.

445
00:24:13,720 --> 00:24:17,479
Speaker 7: The World's most Enduring love story is the motion picture

446
00:24:17,560 --> 00:24:18,680
Speaker 7: to be seen forever.

447
00:24:19,440 --> 00:24:21,320
Speaker 3: Romeo and Juliet.

448
00:24:21,000 --> 00:24:23,920
Speaker 6: Starring Leonard Whiting on Olivia Hussey as.

449
00:24:23,760 --> 00:24:25,600
Speaker 5: The star Cross lovers.

450
00:24:26,440 --> 00:24:32,600
Speaker 6: Oh ruyo Romio, wea Rulia.

451
00:24:33,600 --> 00:24:36,680
Speaker 2: It was the first time those famous lines were spoken

452
00:24:36,840 --> 00:24:42,240
Speaker 2: on screen by a teenager around Juliet's age. Franco Zephyrelli's

453
00:24:42,320 --> 00:24:45,320
Speaker 2: nineteen sixty eight film is considered one of the best

454
00:24:45,359 --> 00:24:49,800
Speaker 2: screen versions of Shakespeare's Romeo and Juliet, but a brief

455
00:24:49,920 --> 00:24:53,440
Speaker 2: nude scene with Olivia Hussey and Leonard Whiting, the two

456
00:24:53,600 --> 00:24:57,560
Speaker 2: real life teens playing the star Cross lovers, is still

457
00:24:57,600 --> 00:25:02,359
Speaker 2: causing controversy today. Hus thee in widing suit Paramount Pictures

458
00:25:02,480 --> 00:25:05,960
Speaker 2: fifty four years later, claiming the scene amounted to child

459
00:25:06,040 --> 00:25:10,760
Speaker 2: pornography and alleging they were duped by Zephyarelli into appearing nude.

460
00:25:11,080 --> 00:25:14,680
Speaker 2: Judges have dismissed two versions of their lawsuit and they

461
00:25:14,680 --> 00:25:18,200
Speaker 2: say they're going to appeal. Joining me is intellectual property

462
00:25:18,240 --> 00:25:22,400
Speaker 2: litigator Terrence Ross a partner Katon Muchen Rosenman Terry tell

463
00:25:22,480 --> 00:25:24,320
Speaker 2: us about the background of this lawsuit.

464
00:25:24,960 --> 00:25:28,040
Speaker 6: This is all rising out of a movie version of

465
00:25:28,119 --> 00:25:31,320
Speaker 6: Romeo and Juliet that Franco Zephyrelli, one of the great

466
00:25:31,320 --> 00:25:35,000
Speaker 6: film directors of all time, wrote and directed. It was

467
00:25:35,000 --> 00:25:37,840
Speaker 6: filmed in nineteen sixty seven, released in nineteen sixty eight,

468
00:25:38,200 --> 00:25:42,000
Speaker 6: so it's quite old. It was a critical hit, received

469
00:25:42,040 --> 00:25:45,399
Speaker 6: four Oscar nominations. It was a financial hit. Against the

470
00:25:45,400 --> 00:25:47,680
Speaker 6: budget about eight hundred and fifty thousand dollars in North

471
00:25:47,720 --> 00:25:50,199
Speaker 6: America alone, they made fourteen point five million and made

472
00:25:50,240 --> 00:25:51,920
Speaker 6: quite a bit in the UK and Europe as well,

473
00:25:52,080 --> 00:25:54,120
Speaker 6: so by all measures, it was a hit. And what

474
00:25:54,359 --> 00:25:56,600
Speaker 6: really attracted people to it was it was the very

475
00:25:56,640 --> 00:25:59,800
Speaker 6: first film or stage version that had actually used teens

476
00:26:00,200 --> 00:26:03,680
Speaker 6: as Romeo and Juliet as William Shakespeare intended to be used.

477
00:26:03,920 --> 00:26:06,720
Speaker 6: If you remember the play Romeo and Juliet are like

478
00:26:06,760 --> 00:26:11,480
Speaker 6: fifteen and sixteen, so Zephyrelli cast Olivia Hussey who was

479
00:26:11,760 --> 00:26:14,719
Speaker 6: sixteen at the time of filming as Juliet, and Leonard

480
00:26:14,760 --> 00:26:18,199
Speaker 6: Whitting as Romeo, who was seventeen at the time of filming,

481
00:26:18,359 --> 00:26:22,479
Speaker 6: and obviously both of them were underage miners. And in

482
00:26:23,280 --> 00:26:26,640
Speaker 6: seeing in Act three that takes place in Juliet's bedroom,

483
00:26:27,040 --> 00:26:31,840
Speaker 6: we see Olivia Hussey's bear breasts and Leonard Whitting's bear buttocks.

484
00:26:32,320 --> 00:26:35,919
Speaker 6: Neither of them are particularly long camera shots, but they

485
00:26:35,960 --> 00:26:38,720
Speaker 6: are there. The actors were paid about twenty two hundred

486
00:26:38,720 --> 00:26:41,280
Speaker 6: dollars in nineteen sixty seven money for the entire film.

487
00:26:41,440 --> 00:26:44,679
Speaker 6: Olivia Hussey went on to have solid career in not

488
00:26:44,840 --> 00:26:48,000
Speaker 6: top tier in later years, did a lot of voiceover work,

489
00:26:48,040 --> 00:26:50,960
Speaker 6: and Leonard Whitting had not much of a career thereafter,

490
00:26:51,040 --> 00:26:54,280
Speaker 6: had a few parts, but sort of drifted off into obscurity,

491
00:26:54,560 --> 00:26:58,240
Speaker 6: and indeed, on multiple occasions wrote to the studio saying

492
00:26:58,280 --> 00:27:01,440
Speaker 6: he really should be paid more money for his work

493
00:27:01,840 --> 00:27:04,639
Speaker 6: on Romeo and Juliet, which he was not. And so

494
00:27:04,720 --> 00:27:06,400
Speaker 6: that's the background to where we are.

495
00:27:06,880 --> 00:27:09,880
Speaker 2: What were the grounds of their first suit against Paramount

496
00:27:10,200 --> 00:27:13,720
Speaker 2: More than a half century after the film came out.

497
00:27:14,000 --> 00:27:17,240
Speaker 6: So the gravemen of the suit was that this nude

498
00:27:17,280 --> 00:27:22,359
Speaker 6: scene amounted to sexual abuse. The actual lawsuit, filed in

499
00:27:22,440 --> 00:27:25,639
Speaker 6: late twenty twenty two in Santa Monica Superior Court. Ooking mind,

500
00:27:25,680 --> 00:27:29,080
Speaker 6: this is a California state court, had seven causes of action,

501
00:27:29,520 --> 00:27:33,440
Speaker 6: and listeners unfamiliar with California litigation may go, what that happen?

502
00:27:33,560 --> 00:27:36,280
Speaker 6: But this is the way litigation works in California. You

503
00:27:36,400 --> 00:27:39,040
Speaker 6: toss in, you know, all these what I call make

504
00:27:39,080 --> 00:27:42,280
Speaker 6: weight causes of action on top of what really matters.

505
00:27:42,600 --> 00:27:45,840
Speaker 6: So the first count was for sexual harassment. Then they

506
00:27:45,840 --> 00:27:49,840
Speaker 6: had a claim for fraud, a claim for childhood sexual abuse,

507
00:27:50,040 --> 00:27:53,360
Speaker 6: a claim for appropriation of likeness. It's a very trendy

508
00:27:53,400 --> 00:27:56,120
Speaker 6: cause of action these days, cause of action for intentional affliction,

509
00:27:56,240 --> 00:28:00,720
Speaker 6: emotional harm, cause action for negligence, and bizarre claim for

510
00:28:00,840 --> 00:28:04,560
Speaker 6: unfair business practices. And the lawsuits sought one hundred million

511
00:28:04,600 --> 00:28:07,800
Speaker 6: dollars cross punitive damages. But the grabman of the compline,

512
00:28:07,800 --> 00:28:10,320
Speaker 6: as you say, was really these nude scenes, and when

513
00:28:10,560 --> 00:28:14,080
Speaker 6: using miners in such nude scenes, what does that amount

514
00:28:14,119 --> 00:28:16,879
Speaker 6: to at law? And so set aside the causes of

515
00:28:16,920 --> 00:28:19,160
Speaker 6: action that's what this lawsuit was about.

516
00:28:19,320 --> 00:28:22,720
Speaker 2: And they claimed that they were sort of forced into

517
00:28:23,000 --> 00:28:23,760
Speaker 2: doing the scene.

518
00:28:24,000 --> 00:28:27,400
Speaker 6: Yeah, exactly. They claimed they were told by Zephyrelli at

519
00:28:27,400 --> 00:28:30,400
Speaker 6: the outset of the film that there would be no nudity.

520
00:28:30,640 --> 00:28:35,679
Speaker 6: The actual scene involving the nudity was filmed secretly. The

521
00:28:35,760 --> 00:28:38,560
Speaker 6: parents of the two miners did not know about it,

522
00:28:38,600 --> 00:28:41,400
Speaker 6: did not know it had happened until after it was filmed.

523
00:28:41,560 --> 00:28:45,640
Speaker 6: These things raised some suspicions in your mind. And apparently

524
00:28:45,840 --> 00:28:49,960
Speaker 6: Zephyrelli was in sort of a creepy way hanging a

525
00:28:50,000 --> 00:28:52,760
Speaker 6: battle of the hussy, making comments about her breath, and

526
00:28:52,960 --> 00:28:56,120
Speaker 6: it is very sort of creepy behavior on set during

527
00:28:56,160 --> 00:28:59,320
Speaker 6: the scene. Although I Hasten also say that neither actor

528
00:28:59,600 --> 00:29:04,040
Speaker 6: has ever criticized Franco Zepharelli since then over this, and

529
00:29:04,320 --> 00:29:07,120
Speaker 6: he was not a defendant lawsuit. He passed away in

530
00:29:07,120 --> 00:29:11,080
Speaker 6: twenty nineteen anyway, But even in the press relations surrounding

531
00:29:11,080 --> 00:29:13,640
Speaker 6: the lawsuit, they were not critical of him in any way,

532
00:29:14,040 --> 00:29:15,320
Speaker 6: which is also sort of odd.

533
00:29:15,880 --> 00:29:19,000
Speaker 2: Did this fifty four year gap play a part in

534
00:29:19,040 --> 00:29:20,880
Speaker 2: the dismissal of the first lawsuit?

535
00:29:21,160 --> 00:29:24,800
Speaker 6: So California In the last few years passed a special

536
00:29:24,880 --> 00:29:29,800
Speaker 6: law that temporarily suspended the statute of limitations in child

537
00:29:29,840 --> 00:29:33,360
Speaker 6: sex abuse cases. Statute of limitations is sort of a

538
00:29:33,400 --> 00:29:37,000
Speaker 6: deadline by which you file your lawsuit. The public policy

539
00:29:37,040 --> 00:29:39,800
Speaker 6: reason behind it is that memory fade, evidence gets lost.

540
00:29:39,960 --> 00:29:43,040
Speaker 6: It's really unfair to inflict upon a defendant a lawsuit

541
00:29:43,080 --> 00:29:45,040
Speaker 6: for something that happened more than a certain number of

542
00:29:45,120 --> 00:29:47,960
Speaker 6: years ago. Given all that has happened in the last

543
00:29:48,000 --> 00:29:50,800
Speaker 6: few years with the Me Too movement, California passed this

544
00:29:50,880 --> 00:29:53,680
Speaker 6: law debt for a short period time allowed victims of

545
00:29:53,720 --> 00:29:57,240
Speaker 6: child sexual abuse to file against or suspended the statute

546
00:29:57,280 --> 00:30:00,520
Speaker 6: of limitations. So what happened here then was they saw

547
00:30:00,560 --> 00:30:04,280
Speaker 6: this opportunity and together Luis Hussey and Leonard winning all

548
00:30:04,320 --> 00:30:07,720
Speaker 6: those peers that Witting was the prime mover in this lawsuit,

549
00:30:08,000 --> 00:30:10,680
Speaker 6: fab a lawyer and filed this lawsuit.

550
00:30:10,280 --> 00:30:14,120
Speaker 2: And why did a judge dismiss the lawsuit in May

551
00:30:14,120 --> 00:30:15,160
Speaker 2: of twenty twenty.

552
00:30:14,880 --> 00:30:18,960
Speaker 6: Three, So Paramount Pictures filed what is called an anti

553
00:30:19,360 --> 00:30:23,120
Speaker 6: slap motion. It is essentially a law that was put

554
00:30:23,200 --> 00:30:24,920
Speaker 6: in place but California and has been adopted by a

555
00:30:24,960 --> 00:30:27,920
Speaker 6: lot of other states since then that protects creators and

556
00:30:28,120 --> 00:30:34,480
Speaker 6: also citizens against having their First Amendment rights chilled through litigation.

557
00:30:34,840 --> 00:30:39,440
Speaker 6: So citizen starts complaining about a developer and what they're

558
00:30:39,480 --> 00:30:42,840
Speaker 6: doing poisoning the environment. Perhaps the developer brings a lawsuit

559
00:30:42,920 --> 00:30:47,200
Speaker 6: against that citizen and that coerces them into shutting up. Well,

560
00:30:47,240 --> 00:30:49,520
Speaker 6: this was a way a mechanism for getting rid of

561
00:30:49,560 --> 00:30:52,800
Speaker 6: such lawsuits so as to protect First Amendment free speech,

562
00:30:53,040 --> 00:30:57,480
Speaker 6: and so Paramount filed that motion, and May twenty twenty three,

563
00:30:57,920 --> 00:31:00,920
Speaker 6: the judge in Santa Monica granted that and dismissed the

564
00:31:00,960 --> 00:31:05,160
Speaker 6: lawsuit in its entirety. She made a number of important

565
00:31:05,240 --> 00:31:10,440
Speaker 6: factual findings to get there. Probably the most important, and

566
00:31:10,520 --> 00:31:13,040
Speaker 6: I'll try to quote exactly from the decision here, she

567
00:31:13,200 --> 00:31:16,920
Speaker 6: found that this bedroom scene in Act three was quote

568
00:31:16,960 --> 00:31:22,560
Speaker 6: not sufficiently sexually suggestive close quote to be able to

569
00:31:22,800 --> 00:31:28,400
Speaker 6: invoke the temporary suspension of the Statute of limitations. In essence,

570
00:31:28,440 --> 00:31:32,280
Speaker 6: she's saying, this wasn't sexual abuse or sexual harassment or

571
00:31:32,320 --> 00:31:35,040
Speaker 6: taking advantage of a minor given what was actually on

572
00:31:35,080 --> 00:31:39,040
Speaker 6: the film. And therefore she said the statute of limitations applied,

573
00:31:39,760 --> 00:31:43,240
Speaker 6: and she tossed out the lawsuit. Now there was a

574
00:31:43,240 --> 00:31:46,640
Speaker 6: whole second layer to this, which is the actors had

575
00:31:46,840 --> 00:31:51,560
Speaker 6: signed consent contracts at the time their parents had signed

576
00:31:51,920 --> 00:31:54,880
Speaker 6: along with them, because as a minor, you're technically not

577
00:31:55,120 --> 00:31:57,880
Speaker 6: held to any contract you saw. And the judge went on,

578
00:31:58,000 --> 00:32:01,440
Speaker 6: is to find that even if you tossed out those

579
00:32:01,520 --> 00:32:05,640
Speaker 6: consents from back in nineteen sixty seven, the behavior of

580
00:32:05,680 --> 00:32:10,360
Speaker 6: the two actors subsequently once they became adults at age eighteen,

581
00:32:10,840 --> 00:32:15,240
Speaker 6: constituted ratification of contracts. And she pointed out to numerous

582
00:32:15,280 --> 00:32:19,880
Speaker 6: instances in which critics had attacked over time this particular

583
00:32:19,960 --> 00:32:23,920
Speaker 6: scene with the nudity, and both Olivia Hussey and Leonard

584
00:32:23,920 --> 00:32:26,160
Speaker 6: whitting had descended the scene and said it was perfectly

585
00:32:26,200 --> 00:32:29,480
Speaker 6: appropriate and had defended Zephyrelli for including it in the movie,

586
00:32:29,680 --> 00:32:33,680
Speaker 6: and that the judge found to be very curious behavior

587
00:32:33,720 --> 00:32:36,520
Speaker 6: and said that as a legal matter, constitute ratification of

588
00:32:36,520 --> 00:32:39,040
Speaker 6: the consent contracts, even if they had been miners at

589
00:32:39,040 --> 00:32:39,440
Speaker 6: the time.

590
00:32:39,880 --> 00:32:44,080
Speaker 2: But they filed a new lawsuit in February of this

591
00:32:44,160 --> 00:32:46,440
Speaker 2: year because there had been a re release of the

592
00:32:46,440 --> 00:32:47,880
Speaker 2: film in twenty twenty three.

593
00:32:48,000 --> 00:32:50,200
Speaker 6: You won't like all the movies nowadays, movies are worth

594
00:32:50,280 --> 00:32:53,520
Speaker 6: or anything. A company called Criterion Collection brought out a

595
00:32:54,240 --> 00:32:58,760
Speaker 6: digitally enhanced DVD that restored the film air quotes around

596
00:32:58,760 --> 00:33:03,200
Speaker 6: restored and really that, and so a smart lawyer said, well,

597
00:33:03,920 --> 00:33:07,960
Speaker 6: this restarts the statute of limitations. In February twenty twenty three,

598
00:33:08,040 --> 00:33:12,520
Speaker 6: refiled the same causes of action mostly and again Paramount

599
00:33:12,560 --> 00:33:16,560
Speaker 6: Pictures filed a motion to dismiss, and again the judge said, no,

600
00:33:16,880 --> 00:33:21,480
Speaker 6: this re release may be digitally restored, but it's not

601
00:33:21,640 --> 00:33:25,600
Speaker 6: in any significant way different, particularly with respect to the

602
00:33:25,680 --> 00:33:29,280
Speaker 6: bedroom scene. And therefore you're stuck with the statute of

603
00:33:29,360 --> 00:33:33,720
Speaker 6: limitations date from back in nineteen sixty seven. And I'm

604
00:33:33,720 --> 00:33:37,160
Speaker 6: going to dismiss this lawsuit again on the same grounds

605
00:33:37,200 --> 00:33:41,560
Speaker 6: as before. And apparently the plaintiffs are going to take

606
00:33:41,600 --> 00:33:44,400
Speaker 6: an appeal of this, and there's lots to take an

607
00:33:44,400 --> 00:33:47,720
Speaker 6: appeal with, but I think that that is going to

608
00:33:47,760 --> 00:33:50,680
Speaker 6: be the most interesting part of the appeal. Whether or

609
00:33:50,760 --> 00:33:54,520
Speaker 6: not a digital re release constitutes a restart of the

610
00:33:54,520 --> 00:33:55,440
Speaker 6: statute limitation.

611
00:33:55,640 --> 00:33:59,160
Speaker 2: What are some of the other appellate issues they might raise.

612
00:34:00,000 --> 00:34:03,640
Speaker 6: We're going to argue that the nude bedroom scene actually

613
00:34:03,880 --> 00:34:09,440
Speaker 6: does constitute child abuse, verging on child pornography. That's going

614
00:34:09,480 --> 00:34:12,360
Speaker 6: to be challenging because the judge here made a fact

615
00:34:12,680 --> 00:34:17,360
Speaker 6: finding that it was not sexually suggestif in sufficient manner

616
00:34:17,440 --> 00:34:21,480
Speaker 6: to violate the law. Trialcourt judge's fact findings are granted

617
00:34:21,560 --> 00:34:25,719
Speaker 6: great deference on appeal, and in order for the appellate

618
00:34:25,760 --> 00:34:29,000
Speaker 6: court to get around that, they would have to say

619
00:34:29,440 --> 00:34:32,839
Speaker 6: the fact finding was out of the realm of reasonable possibility,

620
00:34:33,000 --> 00:34:35,440
Speaker 6: and that almost never happened. And when it does, it

621
00:34:35,520 --> 00:34:39,520
Speaker 6: usually means that the judges made a grievous mistake, usually

622
00:34:39,560 --> 00:34:43,239
Speaker 6: a mistake that just didn't understand the record. That's not

623
00:34:43,320 --> 00:34:46,439
Speaker 6: the mistake being alleged here. On appeal, the plaintiffs will

624
00:34:46,480 --> 00:34:50,760
Speaker 6: say that she just got it wrong, subjectively got it wrong,

625
00:34:50,840 --> 00:34:53,160
Speaker 6: and that is going to be a hard argument to

626
00:34:53,200 --> 00:34:54,239
Speaker 6: make to the appeled court.

627
00:34:54,480 --> 00:34:58,600
Speaker 2: I understand legally why the suits were dismissed, but something

628
00:34:58,680 --> 00:35:02,040
Speaker 2: does seem wrong here. I mean, they were minors doing

629
00:35:02,080 --> 00:35:06,080
Speaker 2: a nude scene that they didn't know about before, and

630
00:35:06,120 --> 00:35:10,120
Speaker 2: their parents didn't know about before, and what's pornographic? Shouldn't

631
00:35:10,120 --> 00:35:13,719
Speaker 2: that be something decided by a jury rather than one judge.

632
00:35:14,000 --> 00:35:16,640
Speaker 6: I think it's a very hard thing to decide. I

633
00:35:16,680 --> 00:35:20,640
Speaker 6: think what is even harder is to put yourself back

634
00:35:20,680 --> 00:35:26,360
Speaker 6: in time to nineteen sixty seven. And try to understand

635
00:35:26,520 --> 00:35:30,399
Speaker 6: what would constitute child abuse under the statute. And there's

636
00:35:30,480 --> 00:35:33,480
Speaker 6: the famous comment from an injustice White, how do you

637
00:35:33,480 --> 00:35:36,160
Speaker 6: decide of his pornography? He said, I know it when

638
00:35:36,200 --> 00:35:38,200
Speaker 6: I see it, which is not much of a standard.

639
00:35:38,520 --> 00:35:42,120
Speaker 6: This is not, strictly speaking, a case of pornography. It's

640
00:35:42,200 --> 00:35:45,719
Speaker 6: just whether or not this was sexual abuse sufficient to

641
00:35:45,760 --> 00:35:49,120
Speaker 6: suspend the statute of limitations. Now, one of the facts

642
00:35:49,160 --> 00:35:52,279
Speaker 6: that came out that a film sort of shocked by

643
00:35:53,000 --> 00:35:56,640
Speaker 6: is the Motion Picture Association of America apparently gave this

644
00:35:56,760 --> 00:35:59,080
Speaker 6: a PG rating when it first came out. I don't

645
00:35:59,080 --> 00:36:01,160
Speaker 6: know what the rating is now on the re release,

646
00:36:01,280 --> 00:36:03,440
Speaker 6: or even if they rate re releases, but you know,

647
00:36:03,520 --> 00:36:05,919
Speaker 6: that sort of argues at the time people didn't think

648
00:36:06,040 --> 00:36:07,960
Speaker 6: much of this scene, and as I said at the beginning,

649
00:36:08,040 --> 00:36:10,799
Speaker 6: these were sort of fleeting glimpses. You know. That would

650
00:36:10,840 --> 00:36:14,640
Speaker 6: seem to strike me as a pretty strong factual indication

651
00:36:14,960 --> 00:36:17,759
Speaker 6: of what people thought back in nineteen sixty seven. In

652
00:36:17,840 --> 00:36:21,960
Speaker 6: nineteen sixty eight about the scene, the critics really focused

653
00:36:22,040 --> 00:36:24,399
Speaker 6: on the fact that this was the first time ever

654
00:36:24,680 --> 00:36:27,600
Speaker 6: in a film or stage version outside of high school,

655
00:36:27,760 --> 00:36:30,839
Speaker 6: but a major production of Rummy and Juliet where they

656
00:36:30,840 --> 00:36:33,640
Speaker 6: had used team and they just didn't then make the

657
00:36:33,719 --> 00:36:37,000
Speaker 6: jump to yeah, but you had naked teams. They were, oh,

658
00:36:37,040 --> 00:36:40,200
Speaker 6: this is brilliant Franco's ever early. I will say this, June, dummy,

659
00:36:40,320 --> 00:36:44,799
Speaker 6: your instinct is bought on about our contemporary reaction to this.

660
00:36:45,400 --> 00:36:49,520
Speaker 6: Something doesn't feel right at your gut level about him

661
00:36:49,600 --> 00:36:52,239
Speaker 6: doing this, So he's dead. He can't rebut this. But

662
00:36:52,719 --> 00:36:54,640
Speaker 6: telling them that there wasn't going to be a nudity,

663
00:36:55,000 --> 00:36:58,520
Speaker 6: then doing this, doing it a separate scene all by itself,

664
00:36:59,000 --> 00:37:01,919
Speaker 6: without the parents on set, not ever having told them,

665
00:37:02,320 --> 00:37:05,480
Speaker 6: sort of secretly filming it. Now, the rebuttal argument could be, well,

666
00:37:05,520 --> 00:37:08,440
Speaker 6: you wanted to take an account sensitivity the actors as

667
00:37:08,440 --> 00:37:10,560
Speaker 6: they do nowadays, and you have you empty out the

668
00:37:10,600 --> 00:37:12,759
Speaker 6: set for the most part, and that may have been it,

669
00:37:13,000 --> 00:37:16,719
Speaker 6: but you know, nowadays we have intimacy coordinators for any

670
00:37:16,760 --> 00:37:20,160
Speaker 6: scenes that involve the smallest man nudity. None of that

671
00:37:20,360 --> 00:37:24,080
Speaker 6: was present back then. And these were teenagers, and they

672
00:37:24,600 --> 00:37:28,080
Speaker 6: talked about the problems they had memalin coping with this

673
00:37:28,560 --> 00:37:31,400
Speaker 6: as teens having people watch them in this way. And

674
00:37:31,440 --> 00:37:33,560
Speaker 6: so that's why I mean, I think your gut instinct

675
00:37:33,600 --> 00:37:36,439
Speaker 6: to is exactly right. It just doesn't sound right. Whether

676
00:37:36,520 --> 00:37:38,680
Speaker 6: or not that's a lawsuit, I don't know.

677
00:37:39,360 --> 00:37:41,719
Speaker 2: I guess we'll see what the appellate court thinks about it.

678
00:37:42,120 --> 00:37:46,000
Speaker 2: Thanks so much, Terry. That's Terrence Ross of Catain Muchen Rosenman.

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00:37:46,840 --> 00:37:49,480
Speaker 2: And that's it for this edition of the Bloomberg Law Podcast.

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00:37:49,840 --> 00:37:52,239
Speaker 2: Remember you've ben always get the latest legal news by

681
00:37:52,280 --> 00:37:56,080
Speaker 2: subscribing and listening to the show on Apple Podcasts, Spotify,

682
00:37:56,400 --> 00:38:00,239
Speaker 2: and at Bloomberg dot com, slash podcast, Slash Law. I'm

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00:38:00,320 --> 00:38:02,719
Speaker 2: June Grosso, and this is Bloomberg