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

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Speaker 2: I think this case is extremely close. I'll just put

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Speaker 2: cards out there on that.

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Speaker 3: And that deduction by Justice Brett Kavanaugh seemed correct because

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Speaker 3: Wednesday's eighty minute oral argument at the Supreme Court didn't

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Speaker 3: give a clear indication about the likely outcome. Wall Street

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Speaker 3: is watching the case over whether to allow investors to

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Speaker 3: broadly use an eighty five year old law to sue

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Speaker 3: funds over their management decisions. A lower court had allowed

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Speaker 3: activist investors led by SABA Capital Master Fund to sue

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Speaker 3: eleven closed end funds, including some affiliated with FS Credit

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Speaker 3: Opportunities and Blackrock. Justice Sonya Soto Mayor pointed to the

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Speaker 3: legislative history of the Investment Company Act to show that

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Speaker 3: Congress intended to allow private rights of action.

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Speaker 4: I know that many of my colleagues don't believe in

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Speaker 4: statutory history, but here we have both a House and

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Speaker 4: a Senate reports accompanying the nineteen eighty amendments to the ICA,

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Speaker 4: and in both the House and the Senate reports, it

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Speaker 4: says that quote private rights of action for violations of

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Speaker 4: the Federal securities Laws are a necessary adjunct to the

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Speaker 4: SEC's and form enforcement efforts.

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Speaker 3: But in recent decades, the Supreme Court has avoided finding

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Speaker 3: private rights of action unless Congress expressly authorizes them in

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Speaker 3: a statute, and conservative Justice Neil Gorsich was critical of

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Speaker 3: allowing so called implied rights of action.

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Speaker 2: Pretty disastrous for our system of government, where the people

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Speaker 2: are supposed to write the laws that govern them, not judges.

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Speaker 3: The Trump administration is backing the mutual funds. I mean,

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Speaker 3: is securities law expert James Park, a professor at UCLA

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Speaker 3: Law School, Jim tell us about this legal fight.

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Speaker 5: Start sort of from the beginning. You have a hedge

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Speaker 5: fund SABA Capital, and one of its strategies is it

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Speaker 5: buys stock in mutual funds, mutual funds that are closed ended,

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Speaker 5: which means that they have stock trading in secondary markets.

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Speaker 5: And the idea on the strategy is you buy a

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Speaker 5: substantial stake and you influence the governance of the fund.

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Speaker 5: You might think that it has poor governance, and then

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Speaker 5: that should increase the price of the stock. That's what

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Speaker 5: activist stock investors typically do, and then you hopefully sell

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Speaker 5: at a profit. And so they did this for a

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Speaker 5: number of mutual funds, and the funds basically tried to

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Speaker 5: take away their right to vote. There was a state

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Speaker 5: law in the state where they were formed which said that,

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Speaker 5: you know, if you pass a resolution, you can take

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Speaker 5: away a shareholder's right to vote unless a majority of

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Speaker 5: the other shareholders basically give it back. And this is,

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Speaker 5: you know, almost a takeover defense sort of thing. It

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Speaker 5: reduces their influence on the company's governance. And so what

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Speaker 5: SABA Capital is arguing is that that violates a law,

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Speaker 5: a federal law called the Investment Company Act, which is

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Speaker 5: passed in nineteen forty, which is meant to regulate mutual funds.

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Speaker 5: The Investment Company Act basically says that shareholders are supposed

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Speaker 5: to have votes proportionate to the number of shares that

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Speaker 5: they own. And so what SABA Capital was arguing is

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Speaker 5: that we have a private right of action to sue

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Speaker 5: and the remedy should be recision, which means basically, we

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Speaker 5: get our money back. And so there's a question as

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Speaker 5: to whether the Investment Company Act authorizes a lawsuit like

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Speaker 5: this because the language does not come out and say

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Speaker 5: in a very straightforward way that you have the right

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Speaker 5: to sue for violations of the Investment Company Act and

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Speaker 5: so the only way you can say they have a

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Speaker 5: right to sue is to say there's something called an

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Speaker 5: implied remedy here, sort of an implicit right to sue

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Speaker 5: that the court can basically say is evident from the law.

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Speaker 3: The Second Circuit Court of Appeals, which handles a lot

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Speaker 3: of these kind of financial cases and is well respected,

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Speaker 3: do it allow a private right of action?

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Speaker 5: They did, They basically did in a different case. And

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Speaker 5: Judge Laval, who is a very prominent respected Second Circuit judge,

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Speaker 5: said that the statute has language that can be read

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Speaker 5: to indicate that Congress intended for private parties to be

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Speaker 5: able to bring suit for recision when there is a

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Speaker 5: violation of the Investment Company Act, And he mainly based

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Speaker 5: his argument on the text. The text of the law says,

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Speaker 5: you know, if you hihilated the Investment Company Act, then

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Speaker 5: the various agreement that you entered into with the mutual

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Speaker 5: fund is unenforceable. It talks about, you know, in certain circumstances,

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Speaker 5: recisions should not be denied a party if the benefit

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Speaker 5: of recision outweighs some of the downsides. So there is

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Speaker 5: language that indicates that Congress might have envisioned these private

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Speaker 5: lawsuits happening, but it's not said in a straightforward way,

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Speaker 5: and I think that's what made the question ambiguous. And

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Speaker 5: in fact, the Third Circuit and a number of other

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Speaker 5: circuits had held the opposite and said that there is

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Speaker 5: not an implied right to sue under the Investment Company Act.

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Speaker 5: And the Supreme Court generally has not favored these implicit rights,

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Speaker 5: which are not straightforward in the text of the statute.

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Speaker 3: And what were the concerns of the justices about allowing

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Speaker 3: a private right of action?

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Speaker 5: There were, you know, a number of concerns, and they

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Speaker 5: mostly focused on the statutory interpretation argument as opposed to

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Speaker 5: broader policy concerns. And you know, I think that they

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Speaker 5: were concerned that the language was not completely straightforward and

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Speaker 5: that there were some really difficult issue of interpreting what

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Speaker 5: the statute meant. Justice Kavanaugh went so far as to

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Speaker 5: say this was a very close case, that there are

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Speaker 5: good arguments on both sides. Some of the more liberal

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Speaker 5: justices pointed to the legislative history, and the legislative history

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Speaker 5: actually indicates that Congress thought that there would be an

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Speaker 5: implied right of action. And there were some reports Senate

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Speaker 5: in house reports which said that the envisioned investors could sue.

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Speaker 5: But a lot of the more conservative justices, as you

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Speaker 5: may know, they don't really like to look at legislative history.

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Speaker 5: They like to look at the text of the statute,

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Speaker 5: and so a lot of the oral argument was puzzling

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Speaker 5: through how we read this language, and that's basically what

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Speaker 5: the argument was mainly about.

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Speaker 3: I thought it was interesting that Justice Sodo Mayor prefaced

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Speaker 3: her remarks about the statutory history by saying, I know

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Speaker 3: many of my colleagues don't believe in statutory history. She

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Speaker 3: also referred to these private lawsuits as being in conjunction

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Speaker 3: with the secs and five enforcement efforts. But if you

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Speaker 3: have private investors bringing their own lawsuits, does that interfere

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Speaker 3: with the SEC's enforcement plans.

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Speaker 5: Definitely. The mutual fund industry has taken the position that

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Speaker 5: the statute is meant to be enforced by the SEC

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Speaker 5: rather than private plaintiffs, and that the SEC can come

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Speaker 5: in if there's a violation of the Investment Company Act

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Speaker 5: and bring various enforcement actions. And you know, I think

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Speaker 5: the response to that is the SEC has limited resources.

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Speaker 5: There are a lot of these mutual funds out there,

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Speaker 5: a lot of potential violations and having private attorney generals

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Speaker 5: who are able to bring these suits maybe a more

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Speaker 5: effective way of enforcing these provisions. That was not really

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Speaker 5: discussed much in the oral argument. I think that argument

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Speaker 5: has fallen a bit out of favor with the more

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Speaker 5: conservative justices. But definitely the mutual fund industry believes that

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Speaker 5: it's really the sec that should be bringing enforcement actions

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Speaker 5: in this space.

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Speaker 3: What about suing in state court rather than federal court.

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Speaker 3: Here's what Justice Kavanaugh said.

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Speaker 2: So it's a federal court state court issue. As I

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Speaker 2: see it, like this is going to happen, It's just

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Speaker 2: going to happen in federal court or state court.

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Speaker 5: There was also a lot of discussion about that possibility

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Speaker 5: that maybe what the statute means is that the contract

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Speaker 5: is unenforceable if there's a violation of the Investment Company Act,

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Speaker 5: and so then there would be litigation in state court

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Speaker 5: about the enforceability of the contract, And so that was

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Speaker 5: seen as a possibility. Have there ever been suits like that,

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Speaker 5: I don't know, and I think there would be a

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Speaker 5: little bit complicated, you know, especially the types of theories

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Speaker 5: that you might want to bring. Federal courts may have

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Speaker 5: a bit of an advantage over state courts in hearing

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Speaker 5: these types of issues, and so it would be a

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Speaker 5: bit awkward to say that these claims would mainly be

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Speaker 5: brought in state court as opposed to federal court if

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Speaker 5: you want to have this be an effective remedy. In

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Speaker 5: my view, the.

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Speaker 3: Supreme Court is considering whether they'll let investors use the

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Speaker 3: nineteen forty Investment Company Act to sue funds over their

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Speaker 3: management decisions. I've been talking to securities law expert James Park,

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Speaker 3: a professor at UCLA Law School. Jim, can you give

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Speaker 3: us a sort of simplistic explanation of the position of

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Speaker 3: each side here on the merits of the case.

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Speaker 5: On one side, the investors might argue, we need some remedy,

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Speaker 5: We need a clear remedy when there are violations, and

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Speaker 5: recision is a pretty powerful remedy under the Investment Company Act,

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Speaker 5: which was meant to regulate mutual funds. On the other hand,

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Speaker 5: I think what the mutual fund industry is worried about

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Speaker 5: is that you're going to get a flood of lawsuits

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Speaker 5: and that that might actually be bad for most investors

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Speaker 5: in the mutual fund because you know, only a few

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Speaker 5: investors might be interested in suing I'm only a few investors,

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Speaker 5: maybe pursuing an activist strategy with the fund, and so

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Speaker 5: the other investors may not be all that interested. And

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Speaker 5: it's costing to defend these lawsuits, and those costs come

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Speaker 5: out of the pockets of the other mutual fund shareholders.

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Speaker 3: It was hard to read the argument, although it did

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Speaker 3: seem like the liberal justices and perhaps the Chief Justice

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Speaker 3: and Justice Kavanaugh might favor allowing the private lawsuits. But

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Speaker 3: what was your take?

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Speaker 6: It's close.

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Speaker 5: I mean, my guess is I actually think that they

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Speaker 5: will find that there is a right of action based

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Speaker 5: upon the text of the statute. I think there is

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Speaker 5: enough in the text of the statute to persuade at

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Speaker 5: least some of the conservative justices that Congress intended for

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Speaker 5: there to be a private right of action for recision.

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Speaker 5: I think the more liberal justices will be persuaded by

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Speaker 5: both the text, the legislative history, and policy consideration. So

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Speaker 5: I think they'll need to get a couple of the

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Speaker 5: Republican justices to decide with them, which I think is

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Speaker 5: very possible. It's not a sure thing, but just my

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Speaker 5: sense of the argument. If I felt like Saba Capital

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Speaker 5: might have had a bit of a better argument in

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Speaker 5: terms of the text on the statutory interpretation issue.

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Speaker 3: This case really doesn't present activists, investors and their motivations

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Speaker 3: in the best light.

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Speaker 5: This is an ongoing debate as to whether or not

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Speaker 5: you think activists are you know, are positive for corporations

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Speaker 5: and mutual funds. And you know, this is interesting because

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Speaker 5: it's an activism in a space where we don't necessarily

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Speaker 5: see a lot of activism. And you know, there's a

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Speaker 5: question as to do we need it for mutual funds.

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Speaker 5: And there's one, you know, one argument that perhaps you know,

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Speaker 5: mutual funds may have weak corporate governance. The boards are

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Speaker 5: controlled by the managers of the fund and so they

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Speaker 5: don't push back enough on the fund managers. There's a

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Speaker 5: view that, you know, we need to scrutinize the governance

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Speaker 5: of the mutual funds. On the other hand, there's another

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Speaker 5: view that some scholars have expressed that you know, if

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Speaker 5: you're unhappy with the governance of mutual funds, you can

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Speaker 5: sell your shares, you can exit very easily and find

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Speaker 5: another mutual fund, and that would create some pressure on funds.

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Speaker 5: So maybe litigation is not all that necessary. And so

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Speaker 5: I think with shareholder litigation with respect to mutual funds.

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Speaker 5: You know, we don't have kind of the you know,

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Speaker 5: iconic cases that you did with you know, Rule ten

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Speaker 5: B five and suits against public companies like we don't

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Speaker 5: have the en runs and World comms where there was

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Speaker 5: a demonstrated need for shareholders to be able to sue

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Speaker 5: and bring an action to recover funds. You know, haven't

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Speaker 5: seen as many examples of that in the mutual fund space.

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Speaker 5: That doesn't mean that there aren't examples of egregiously bad

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Speaker 5: corporate governance, but I think there's an argument that maybe

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Speaker 5: we don't need as much as scrutiny of the governance

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Speaker 5: of mutual funds because it's a very competitive industry, right

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Speaker 5: There are thousands of these funds that you can choose,

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Speaker 5: and you know, if one of them is being mismanaged,

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Speaker 5: you can shift your funds to another one.

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Speaker 3: And do you think that it's the correct decision to

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Speaker 3: allow the private investors to.

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Speaker 5: Sue as a policy matter, I think the risk that

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Speaker 5: it's going to lead to a flood of lawsuits may

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Speaker 5: be low. We'll have to see, though. And my colleague

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Speaker 5: at UCLA for non Restreppo actually has a study that

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Speaker 5: he just completed that looked at what happened after the

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Speaker 5: Second Circuit allowed these lawsuits, and he didn't find a

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Speaker 5: flood of cases, and he didn't find a big impact

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Speaker 5: on the mutual fund industry. These are preliminary results, he

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Speaker 5: tells me, So he may find something different as he

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Speaker 5: delves into the data. And his study only, I think,

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Speaker 5: looks at the Second Circuit, So you know, maybe a

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Speaker 5: Supreme Court ruling would have a greater impact than the

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Speaker 5: number of suits that have been brought. My sense is that,

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Speaker 5: you know, SABA Capital is a little bit of an

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Speaker 5: outlier in terms of pursuing a strategy like this. Most

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Speaker 5: activist funds are targeting public corporations rather than mutual funds. Now,

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Speaker 5: it might be that if you know you have more

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Speaker 5: rights and more leverage, that more funds may get into

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Speaker 5: this space. But it is a strategy that does require

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Speaker 5: you to make a pretty substantial investment in the mutual

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Speaker 5: funds so that you have significant votes. And it's a

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Speaker 5: little bit different than some of the shareholder lawsuits we

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Speaker 5: see with public companies, which have been criticized because you know,

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Speaker 5: you have plaintiffs who own only a few shares, who

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Speaker 5: have a right to bring a private action represented by

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Speaker 5: an attorney in a class action, and so that might

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Speaker 5: be the reason we see a lot of litigation in

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Speaker 5: the public company space. I don't know if that will

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Speaker 5: necessarily be true with respect to mutual funds. And you know,

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Speaker 5: the other thing to keep in mind is the implied

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Speaker 5: right of action is also just for recision, which means

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Speaker 5: the remedies you get your money back, as opposed to damages.

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Speaker 5: That may also have some impact on the incentives of

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Speaker 5: plaintiffs to bring lot of lawsuits for violations of the

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Speaker 5: investment company ASTs.

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Speaker 3: What's an investor lawsuit without damages? Thanks so much, Jim.

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Speaker 3: That's Professor James Park of UCLA Law School. The Supreme

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Speaker 3: Court decided twenty three years ago that sentencing a mentally

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Speaker 3: disabled person to death violates the Eighth Amendments ban on

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Speaker 3: cruel and unusual punishment, but it left it up to

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Speaker 3: the states to decide how to determine that disability, and

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Speaker 3: this week, the Justice is struggled with whether to allow

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Speaker 3: Alabama to execute a man with low cognitive function who'd

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Speaker 3: gotten varying results on multiple IQ tests. In past decisions,

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Speaker 3: the Court has said that defendants are permitted to offer

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Speaker 3: additional evidence of cognitive impairment if their IQ scores fall

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Speaker 3: below the threshold, and several justices said that Alabama's dependence

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Speaker 3: on the IQ score was too rigid here. This is Katanji,

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Speaker 3: Brown Jackson, Elena Kagan, and Brett Kavanaugh.

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Speaker 1: The district court did here was look not only at

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Speaker 1: the IQ scores holistically, but also other evidence of adaptive functioning.

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Speaker 1: And that's precisely what our case law says that the

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Speaker 1: courts are supposed to do.

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Speaker 6: That's totally within a state court's discretion to say, there

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Speaker 6: are a lot of scores here on the plus seventy

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Speaker 6: side that's despositive for us, as long as they've given

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Speaker 6: a person this is the only requirement that seems to

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Speaker 6: me that comes out of whole. And more, they have

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Speaker 6: to give the person with the with the seventy or

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Speaker 6: minus score the opportunity to come in with adaptive evidence

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Speaker 6: suggesting the opposite.

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Speaker 2: Fall upon Justice Kagan's question, what's the logic or the

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Speaker 2: rationale or the sense behind not having a district court

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Speaker 2: or a trial court or a state court have the

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Speaker 2: ability in those circumstances to go on and look at more.

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Speaker 3: The Eleventh Circuit Court of Appeals had found that Joseph

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Speaker 3: Clinton Smith was intellectually disabled and said its decision was

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Speaker 3: based on a holistic approach that considered Smith's deficits in

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Speaker 3: everyday skills along with the IQ score of seventy two.

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Speaker 3: Alabama is appealing that decision to the Supreme Court. Joining

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Speaker 3: me is an expert in death penalty litigation, Andrea Lyon

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Speaker 3: of the Chicago firm of Lyon in Kerr. She's taken

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Speaker 3: nineteen capital cases through the penalty phase. Andrew tell us

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Speaker 3: about Joseph Smith and the course of his death penalty litigation.

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Speaker 7: Well, mister Smith is intellectually disabled. The question is is

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Speaker 7: whether or not he meets the standard that was drawn

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Speaker 7: up by the United Supreme Court in a case called

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Speaker 7: Atkins versus Virginia quite some time ago at this point,

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Speaker 7: and they just said that someone who was intellectually disabled,

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Speaker 7: which used to be called mental retardation, had a lower

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Speaker 7: level of moral culpability, not lower level of legal culpability.

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Speaker 7: They could still be convicted, but a lower level of

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Speaker 7: moral culpability because of their inability to reason very well.

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Speaker 7: And so the question here is whether or not mister

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Speaker 7: Smith fits into the categories that have been worked out

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Speaker 7: through various cases in the United States Supreme Court. It

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Speaker 7: used to be that it was like, if your IQ

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Speaker 7: was seventy or lower, you fit in the category, and

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Speaker 7: if it was above that you didn't. And that has

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Speaker 7: changed because part of what gets looked at and what

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Speaker 7: psychologists say should be looked at, is adaptive behavior. You

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Speaker 7: know how well the person is adjusted, how well they're functioning.

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Speaker 7: One thing, mister Smith, as I understand it, his IQ

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Speaker 7: was variously seventy two to seventy eight, which which is

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Speaker 7: quite low and puts them in what is called the

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Speaker 7: mildly mentally retarded or mildly intellectual disabled. But when I

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Speaker 7: say mildly, I think it might be helpful to know

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Speaker 7: that someone with an IQ of seventy two functions at

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Speaker 7: the same level as a nine to ten or eleven

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Speaker 7: year old child, and I think that helps put things

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Speaker 7: in perspective. I mean, a child knows that they're not

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Speaker 7: supposed to hurt someone, But if a child does something,

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Speaker 7: we don't hold them to the same standard that we

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Speaker 7: would hold an adult to because we recognize that they

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Speaker 7: are have limitations and that their decision making isn't very

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Speaker 7: good and all of those sorts of things. So mister

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Speaker 7: Smith is functioning at that level, and I think that

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Speaker 7: what the Court is struggling with here is how to

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Speaker 7: define things and how much to get in the weeds themselves.

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Speaker 3: The US Court of Appeals for the Eleventh Circuit, which

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Speaker 3: is one of the more conservative circuits in the country,

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Speaker 3: found that he met the standard, and the Eleventh Circuit

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Speaker 3: said its finding was based on a holistic approach and

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Speaker 3: review of evidence, not just a single low score. So

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Speaker 3: do you think that the justices took this case because

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Speaker 3: they're not happy with that holistic view?

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Speaker 7: I would think not, given the decisions that have been

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Speaker 7: made since Atkins, where the courts are directed to take

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Speaker 7: a look at all of the things that make you

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Speaker 7: qualify someone that way, that this has to have happened

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Speaker 7: or be evident prior to the person reaching their majority.

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Speaker 7: There's a number of things that the American Psychological and

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Speaker 7: the American Psychiatric associations say that you need to look at,

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Speaker 7: and so courts were encouraged to take a holistic approach.

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Speaker 7: It is difficult to know what this Supreme Court will

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Speaker 7: make of that. They are remarkably uninterested in precedent. I

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Speaker 7: think that's the polite way to put it. If they

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Speaker 7: follow precedent, then they will affirm the Eleventh Circuit, which,

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Speaker 7: as you mentioned, is a conservative court. And if a

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Speaker 7: conservative court found it to be the case, it's probably

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Speaker 7: the case because they don't necessarily want to help people

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Speaker 7: that are on death row. But it's very difficult to

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Speaker 7: know whether the Court will follow its own precedent or not,

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Speaker 7: and what some of the justices who say that they

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Speaker 7: are originalists, which is another whole conversation we can have

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Speaker 7: another time. But you know they're going to say, well,

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Speaker 7: we didn't do that in you know, seventeen seventy six.

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Speaker 7: We didn't care what the IQ was, you know, but

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Speaker 7: we also chopped off the hands of thieves and hung

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Speaker 7: people for stealing bread. So the question is, you know

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Speaker 7: whether or not what the Supreme Court has identified as

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Speaker 7: evolving standards of decency that caused the decision in Atkins

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Speaker 7: and its progeny should still apply. I imagine that there are

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Speaker 7: members of the Court who think, not.

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Speaker 3: What does Alabama want just a strict, rigid let's look

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Speaker 3: at the IQ scores and stop there.

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Speaker 7: I think they would like more guidance as to what

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Speaker 7: to look at. But I think there's a pretty clear

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Speaker 7: consensus among courts that do this kinds of reviews, both

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Speaker 7: federal and state, that you have to do a holistic

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Speaker 7: approach that the number alone doesn't tell you enough. First

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Speaker 7: of all, there's margin of error, so somebody with a

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Speaker 7: seventy two IQ could actually have an IQ of sixty seven.

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Speaker 7: So there's that plus or minus to five points. So

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Speaker 7: there's that. But you also have to look and see

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Speaker 7: whether the person has their adaptive behavior takes them out

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Speaker 7: of that protected category. So you could conceivably have someone

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Speaker 7: who has managed, with great teaching or great support to

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Speaker 7: function like a sixteen year year old rather than an

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Speaker 7: eleven year old with all of the things that are

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Speaker 7: wrong with him or her, and a court could find,

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Speaker 7: looking at all of the circumstances, that they are not

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Speaker 7: exempt from the death penalty for that reason. One of

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Speaker 7: the challenges that has been noted by many Supreme Court

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Speaker 7: justices over the years is that it's very very difficult

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Speaker 7: to set standards that are immutable and that coexist with

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Speaker 7: the two main concepts that are often in tension with

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Speaker 7: one another. And one of those concepts is that you

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Speaker 7: need to narrow the class of people who are eligible

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Speaker 7: for the death penalty, so adding an aggravating factor such

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Speaker 7: as killing a police officer in mine of duty something

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Speaker 7: like that. But you also have to have individualized consideration

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Speaker 7: of the defendant, and those things sometimes clash, but that

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Speaker 7: is the nature of the law. Everything is not always

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Speaker 7: one and clear. Some things are. You can give guidelines,

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Speaker 7: but you can't give you know, above this line ax

401
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Speaker 7: and below that line? Why? Because it does not work

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Speaker 7: with human beings. And the law is, after all about

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Speaker 7: and four fallible human beings.

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Speaker 3: How is the Supreme Court already ruled in this area?

405
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Speaker 3: Have they said you can use other things besides this

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Speaker 3: rigid IQ cutoff?

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Speaker 7: Yes, they have.

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Speaker 3: So then I'm wondering what the point of taking this

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Speaker 3: case is when it seems to be about do we

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Speaker 3: use a rigid IQ determination or are we looking at

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Speaker 3: it holistically.

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Speaker 7: I don't know why they took it. I don't know

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Speaker 7: if there's some justices who think that they could be

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Speaker 7: more clear than they have been in the previous three cases.

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Speaker 7: I don't know if there's some justices who want to

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Speaker 7: back away from category workly eliminating certain groups of people

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Speaker 7: such as you know, juveniles and those with intellectual disabilities.

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Speaker 7: You know, whether they think that was a mistake and

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Speaker 7: that that should just be presented in mitigation. I suppose

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Speaker 7: there are some justices, and I could guess who they

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Speaker 7: might be who would feel that way, But that's not

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Speaker 7: the law. And the law has been this way for

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Speaker 7: a long time, and people do seem to understand it

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Speaker 7: and seem to be able to apply it. So your

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Speaker 7: question as to why they took the case, I would

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Speaker 7: just be guessing.

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Speaker 3: You've represented so many death penalty defendants. How difficult is

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Speaker 3: it to get a determination of mental disability from the courts?

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Speaker 7: Well, it's not easy. I mean you have to investigate

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Speaker 7: the defendant's life and take a look and see if

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Speaker 7: there are you know, IQ scores from ages ago. And

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Speaker 7: we used to do that in public schools regularly. Now

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Speaker 7: I don't think we do it as much. And you

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Speaker 7: know whether the person has been in you know, education plans,

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Speaker 7: how they've been functioning, because you know, the first part

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Speaker 7: of things is you have to show that this is

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Speaker 7: not something that has happened as a result of a

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Speaker 7: blow to the head or something else later. So you

439
00:26:09,280 --> 00:26:11,560
Speaker 7: have to dig in and get those records. School records,

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Speaker 7: medical records, everything you possibly can. Then you have to

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00:26:15,720 --> 00:26:19,919
Speaker 7: have your client evaluated by a competent mental health professional

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00:26:20,400 --> 00:26:22,960
Speaker 7: and you get a report, and then you file emotion

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00:26:23,080 --> 00:26:25,680
Speaker 7: to bar the death penalty. Assuming that it comes out

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00:26:26,040 --> 00:26:29,160
Speaker 7: with your client has intellectual disabilities, you file a motion

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Speaker 7: to bar the death penlling on that basis. Now, sometimes

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00:26:32,119 --> 00:26:34,199
Speaker 7: you end up in a big fight with an evidentiary

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00:26:34,200 --> 00:26:36,800
Speaker 7: hearing and a judge makes a determination yes or no.

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00:26:37,240 --> 00:26:40,240
Speaker 7: Sometimes the prosecution will take a look at what you

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Speaker 7: have and decide that this person is an Atkins excludible

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00:26:45,040 --> 00:26:48,159
Speaker 7: that's how we refer to it in this world, and

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Speaker 7: that there's no reason to contest it and just agree

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Speaker 7: to take the death penalty off the table. So that's

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Speaker 7: basically what happens. It takes time and effort and resources

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Speaker 7: to determine that.

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Speaker 3: Well, thanks so much for joining me today, Andrea. That's

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Speaker 3: Andrea Lyon of Lyon and Kerr. And that's it for

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Speaker 3: this edition of the Bloomberg Law Show. Remember you can

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Speaker 3: always get the latest legal news on our Bloomberg Law podcasts.

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Speaker 3: You can find them on Apple Podcasts, Spotify, and at

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Speaker 3: www dot bloomberg dot com. Slash podcast slash law, and

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Speaker 3: remember to tune into The Bloomberg Law Show every weeknight

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Speaker 3: at ten pm Wall Street Time. I'm June Grosso and

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Speaker 3: you're listening to Bloomberg