1 00:00:02,520 --> 00:00:09,760 Speaker 1: Bloomberg Audio Studios, podcasts, radio news. This is Bloomberg Law. 2 00:00:09,840 --> 00:00:12,720 Speaker 2: Employers frequently exploit the weaknesses in the law. 3 00:00:12,800 --> 00:00:15,080 Speaker 3: Of course, are going to be asking questions about separation 4 00:00:15,160 --> 00:00:15,840 Speaker 3: of powers. 5 00:00:15,920 --> 00:00:18,880 Speaker 1: One by one, Google settled with all of these other plaintiffs. 6 00:00:18,880 --> 00:00:22,119 Speaker 1: Interviews with prominent attorneys and Bloomberg Legal experts. 7 00:00:22,200 --> 00:00:25,599 Speaker 2: Joining me is immigration law expertly on Fresco, First Amendment 8 00:00:25,680 --> 00:00:27,560 Speaker 2: law expert Caroline Malick. 9 00:00:27,360 --> 00:00:31,520 Speaker 1: Corbin, and analysis of important legal issues, cases and headlines that. 10 00:00:31,600 --> 00:00:34,240 Speaker 3: Trial judge may well want to hold a hearing. 11 00:00:34,360 --> 00:00:36,159 Speaker 4: They have never said this case. 12 00:00:36,000 --> 00:00:37,920 Speaker 3: Should never have been brought in the first place. 13 00:00:38,000 --> 00:00:42,080 Speaker 1: Bloomberg Law with June Grosso from Bloomberg Radio. 14 00:00:45,600 --> 00:00:49,000 Speaker 2: Welcome to a special holiday edition of the Bloomberg Law Show. 15 00:00:49,440 --> 00:00:53,199 Speaker 2: I'm June Grosso. Ahead. In this hour, we'll focus on 16 00:00:53,320 --> 00:00:57,680 Speaker 2: cases before the Supreme Court. The justices will decide when 17 00:00:57,720 --> 00:01:01,480 Speaker 2: it's okay for police to enter a home during an emergency, 18 00:01:02,320 --> 00:01:05,839 Speaker 2: whether a judge can bar a criminal defense attorney from 19 00:01:05,880 --> 00:01:10,160 Speaker 2: talking to their own clients during their testimony, and whether 20 00:01:10,280 --> 00:01:15,280 Speaker 2: to invalidate Colorado's ban on conversion therapy for miners. 21 00:01:16,080 --> 00:01:23,080 Speaker 5: If the police could not enter this house based on 22 00:01:23,800 --> 00:01:27,280 Speaker 5: the facts that they knew then. I don't know when 23 00:01:27,360 --> 00:01:29,360 Speaker 5: the police are ever going to be able to enter 24 00:01:29,360 --> 00:01:33,240 Speaker 5: a house to prevent somebody from committing suicide. 25 00:01:33,520 --> 00:01:36,280 Speaker 2: Police didn't have a warrant when they entered the home 26 00:01:36,319 --> 00:01:39,600 Speaker 2: of an army veteran in Montana. But they weren't there 27 00:01:39,640 --> 00:01:43,080 Speaker 2: to arrest William Trevor Case. They were there to help him. 28 00:01:43,520 --> 00:01:47,120 Speaker 2: His ex girlfriend said that Case had threatened suicide and 29 00:01:47,160 --> 00:01:51,640 Speaker 2: had a loaded handgun. The police knocked, they yelled, They 30 00:01:51,720 --> 00:01:55,440 Speaker 2: waited forty minutes, and then they went in. The question 31 00:01:55,520 --> 00:01:59,040 Speaker 2: before the Supreme Court is what's the standard for police 32 00:01:59,280 --> 00:02:02,960 Speaker 2: entering a home in an emergency? Justice is from across 33 00:02:03,000 --> 00:02:07,480 Speaker 2: the ideological spectrum suggested that the officers were right to 34 00:02:07,600 --> 00:02:11,320 Speaker 2: go in in this case. Here are Justices Samuel Alito 35 00:02:11,520 --> 00:02:13,120 Speaker 2: and Katanji Brown Jackson. 36 00:02:13,560 --> 00:02:15,720 Speaker 5: What more would they need here? If they need to 37 00:02:15,760 --> 00:02:17,680 Speaker 5: be able to look through the window and see him 38 00:02:17,680 --> 00:02:19,600 Speaker 5: with a gun and point it to his head, or 39 00:02:19,639 --> 00:02:21,440 Speaker 5: they need to see a dead body on the floor, 40 00:02:21,639 --> 00:02:22,240 Speaker 5: what more. 41 00:02:22,040 --> 00:02:22,640 Speaker 1: Did they need? 42 00:02:23,880 --> 00:02:29,240 Speaker 6: This person had a long history of threatening suicide, whether 43 00:02:29,320 --> 00:02:31,720 Speaker 6: it be by cop or whether it be on his 44 00:02:31,800 --> 00:02:36,600 Speaker 6: own or whatever. We have a long conversation detailed specific 45 00:02:36,760 --> 00:02:41,240 Speaker 6: with the girlfriend about circumstances that look like they're creating 46 00:02:41,280 --> 00:02:42,799 Speaker 6: a pretty significant emergency. 47 00:02:43,400 --> 00:02:49,200 Speaker 2: And Justice Brett Kavanaugh questioned Case's attorney about the alternative scenario. 48 00:02:49,680 --> 00:02:53,680 Speaker 7: Well, if they, after deliberations, walk away and he commits suicide, 49 00:02:53,960 --> 00:02:56,560 Speaker 7: I mean, what are you thinking, Then it's the officers. 50 00:02:56,160 --> 00:02:59,520 Speaker 1: That would be unfortunate and tragic. But we are trying 51 00:02:59,520 --> 00:03:00,920 Speaker 1: to strike up balance between it. 52 00:03:01,240 --> 00:03:04,720 Speaker 7: And the officers need some clarity, I would think in 53 00:03:04,800 --> 00:03:07,640 Speaker 7: circumstances like this about what they can do and what 54 00:03:07,720 --> 00:03:09,360 Speaker 7: they can't do. 55 00:03:09,880 --> 00:03:12,200 Speaker 2: But there was no such clarity by the end of 56 00:03:12,240 --> 00:03:16,600 Speaker 2: the arguments. Joining me is former federal prosecutor Robert Mintz, 57 00:03:16,720 --> 00:03:21,040 Speaker 2: a partner maccarter in English, Bob, So, police normally need 58 00:03:21,200 --> 00:03:25,280 Speaker 2: a warrant to enter home, but there are some emergency 59 00:03:25,400 --> 00:03:28,799 Speaker 2: situations that are exceptions. Tell us about that. 60 00:03:29,400 --> 00:03:33,000 Speaker 3: So there is a so called Emergency Aid exception to 61 00:03:33,080 --> 00:03:36,000 Speaker 3: the Fourth Amendment, which allows police officers to conduct a 62 00:03:36,120 --> 00:03:40,600 Speaker 3: warrantless search if they have reasonable suspicion that there is 63 00:03:40,640 --> 00:03:44,360 Speaker 3: an emergency and an immediate need to protect others or 64 00:03:44,400 --> 00:03:45,520 Speaker 3: themselves from harm. 65 00:03:45,960 --> 00:03:49,120 Speaker 2: And tell us about the facts here. Because Case ended 66 00:03:49,200 --> 00:03:52,680 Speaker 2: up being convicted of assaulting a police officer. 67 00:03:53,160 --> 00:03:56,160 Speaker 3: The defendant in this case, William Trevor Case, was an 68 00:03:56,280 --> 00:04:00,960 Speaker 3: army veteran who had a girlfriend who contacted police suggesting 69 00:04:01,200 --> 00:04:05,000 Speaker 3: that mister Case might be suicidal. Officers arrived at mister 70 00:04:05,080 --> 00:04:08,480 Speaker 3: Casey's house around nine pm, and they were familiar with 71 00:04:08,520 --> 00:04:11,920 Speaker 3: his history of alcohol abuse and certain mental health issues. 72 00:04:12,160 --> 00:04:15,280 Speaker 3: The ex girlfriend had told police that mister Case had 73 00:04:15,320 --> 00:04:18,160 Speaker 3: a loaded gun, He had threatened to harm police if 74 00:04:18,200 --> 00:04:20,880 Speaker 3: she tried to send officers to his home, and she 75 00:04:21,040 --> 00:04:23,760 Speaker 3: claimed before she hung up with the police that she 76 00:04:23,760 --> 00:04:26,560 Speaker 3: had heard a pop and then silence and was concerned 77 00:04:26,560 --> 00:04:29,919 Speaker 3: that mister Case had actually pulled the trigger. The officers 78 00:04:30,040 --> 00:04:33,240 Speaker 3: arrived at mister Case's door, they yelled, they shine flashlights 79 00:04:33,279 --> 00:04:36,240 Speaker 3: through the windows. They could see empty beer cans, an 80 00:04:36,240 --> 00:04:40,359 Speaker 3: empty handgun holster, and a notepad with handwriting, which the 81 00:04:40,400 --> 00:04:43,960 Speaker 3: officers believed at the time was a possible suicide note. 82 00:04:44,080 --> 00:04:47,800 Speaker 3: After about forty minutes, they entered through the unlocked front door, 83 00:04:48,040 --> 00:04:51,120 Speaker 3: and when they went upstairs, they saw a closet curtain open. 84 00:04:51,560 --> 00:04:55,680 Speaker 3: Mister Case lunged forward, his armed outstretched with what officers 85 00:04:55,720 --> 00:04:59,159 Speaker 3: believed was a handgun. The officer fired one shot, striking 86 00:04:59,200 --> 00:05:01,479 Speaker 3: mister Case. In the act abdomen. It turned out the 87 00:05:01,520 --> 00:05:05,120 Speaker 3: handgun was found in a nearby laundry basket. The issue 88 00:05:05,120 --> 00:05:08,320 Speaker 3: with trial, then, was when the defense tried to exclude 89 00:05:08,320 --> 00:05:11,520 Speaker 3: the gun and other evidence of the confrontation from the trial. 90 00:05:11,760 --> 00:05:15,760 Speaker 3: The trial judge overruled that defense and allowed the prosecution 91 00:05:16,240 --> 00:05:18,440 Speaker 3: to present it to the jury, and he was convicted 92 00:05:18,480 --> 00:05:19,240 Speaker 3: after a trial. 93 00:05:19,600 --> 00:05:22,039 Speaker 2: It seemed like the police had a lot of reasons 94 00:05:22,200 --> 00:05:25,160 Speaker 2: to go in. How much more did the defense think 95 00:05:25,200 --> 00:05:27,039 Speaker 2: they should have before they entered the house. 96 00:05:27,400 --> 00:05:29,440 Speaker 3: To put this in context, the Fourth Amendment of the 97 00:05:29,480 --> 00:05:34,600 Speaker 3: Constitution prohibits unreasonable searches and provides protections for a person's 98 00:05:34,680 --> 00:05:38,359 Speaker 3: home by generally prohibiting law enforcement from entering without a 99 00:05:38,400 --> 00:05:41,440 Speaker 3: warrant that is really set up in order to allow 100 00:05:41,480 --> 00:05:44,480 Speaker 3: people to have privacy in their home in the context 101 00:05:44,760 --> 00:05:48,080 Speaker 3: of a possible criminal case. The question that was facing 102 00:05:48,279 --> 00:05:51,880 Speaker 3: justices in this case is what level of certainty must 103 00:05:51,960 --> 00:05:55,760 Speaker 3: police have that an emergency is underway before entering a 104 00:05:55,800 --> 00:05:59,560 Speaker 3: home without a warrant. Mister Case's lawyers argued that it 105 00:05:59,600 --> 00:06:02,000 Speaker 3: should be a high bar. They argue that it should 106 00:06:02,000 --> 00:06:05,560 Speaker 3: be something called probable cause, which is what police officers 107 00:06:05,680 --> 00:06:09,120 Speaker 3: need in order to get a warrant to search your 108 00:06:09,200 --> 00:06:12,560 Speaker 3: home in the case of a criminal investigation. But here 109 00:06:12,880 --> 00:06:15,680 Speaker 3: this was not a criminal investigation. This was a circumstance 110 00:06:15,960 --> 00:06:18,960 Speaker 3: in which they believed that there was an emergency and 111 00:06:19,040 --> 00:06:22,160 Speaker 3: there was someone's life at risk inside the house. So 112 00:06:22,200 --> 00:06:24,599 Speaker 3: the question is what is the level of certainty that 113 00:06:24,640 --> 00:06:26,919 Speaker 3: police officers need to have in order to enter the 114 00:06:26,960 --> 00:06:29,880 Speaker 3: home without a warrant? And the defense argued that that 115 00:06:30,000 --> 00:06:32,920 Speaker 3: level of certainty in order to avoid needless and dangerous 116 00:06:32,960 --> 00:06:37,240 Speaker 3: confrontations and to prevent police officers from circumventing the concept 117 00:06:37,240 --> 00:06:40,120 Speaker 3: of probable cause, that there has to be probable cause 118 00:06:40,320 --> 00:06:42,719 Speaker 3: that they believe that there is an emergency and that 119 00:06:42,839 --> 00:06:44,280 Speaker 3: somebody is in imminent danger. 120 00:06:44,680 --> 00:06:48,200 Speaker 2: The state of Montana and the Trump administration argued that 121 00:06:48,360 --> 00:06:52,760 Speaker 2: probable cause was too high a standard in these emergency cases. 122 00:06:53,240 --> 00:06:57,839 Speaker 2: Montana's solicitor general said that a stricter rule of probable 123 00:06:57,920 --> 00:07:02,240 Speaker 2: cause would quote require hire police to stand outside a 124 00:07:02,360 --> 00:07:06,000 Speaker 2: dying man's door. So what standard did they argue for. 125 00:07:06,440 --> 00:07:10,200 Speaker 3: The government argued that the justices should rely on a 126 00:07:10,240 --> 00:07:13,400 Speaker 3: Supreme Court case from two thousand and six was a 127 00:07:13,480 --> 00:07:17,080 Speaker 3: unanimous opinion in a case called Brigham City versus Stuart, 128 00:07:17,360 --> 00:07:19,760 Speaker 3: in which the Supreme Court held that police may enter 129 00:07:19,760 --> 00:07:23,320 Speaker 3: a building without a warrant when they have an objectively 130 00:07:23,640 --> 00:07:27,480 Speaker 3: reasonable basis to believe that an occupant is seriously injured 131 00:07:27,760 --> 00:07:31,200 Speaker 3: or threatened with such injury. So in that case, they 132 00:07:31,240 --> 00:07:33,840 Speaker 3: took it completely out of the context of probable cause, 133 00:07:34,080 --> 00:07:37,240 Speaker 3: which really has an entire body of case law that 134 00:07:37,360 --> 00:07:40,200 Speaker 3: talks about when police may enter a home with or 135 00:07:40,200 --> 00:07:42,920 Speaker 3: without a warrant in the context of a criminal investigation, 136 00:07:43,280 --> 00:07:47,000 Speaker 3: and said that here we're talking about imminent risk to somebody. 137 00:07:47,160 --> 00:07:50,600 Speaker 3: It's not a criminal investigation. It's really a circumstance where 138 00:07:50,640 --> 00:07:53,400 Speaker 3: police officers may come into a home in order to 139 00:07:53,520 --> 00:07:56,640 Speaker 3: arguably save the life of somebody or save the life 140 00:07:56,680 --> 00:07:59,160 Speaker 3: of somebody who may be with somebody who's in danger 141 00:07:59,200 --> 00:08:01,920 Speaker 3: of hurting them. And in that case the standard is 142 00:08:02,040 --> 00:08:05,600 Speaker 3: objectively reasonable basis to believe that the occupant is seriously 143 00:08:05,640 --> 00:08:07,920 Speaker 3: injured or threatened with such injury. 144 00:08:08,600 --> 00:08:12,880 Speaker 2: It seemed like justice is across the ideological spectrum, thought 145 00:08:12,960 --> 00:08:16,160 Speaker 2: that the police had good reason to enter here. 146 00:08:16,480 --> 00:08:19,800 Speaker 3: Yeah, Well, what's interesting here is that the Montana Supreme Court, 147 00:08:20,040 --> 00:08:22,160 Speaker 3: which is the court that had just heard the case 148 00:08:22,200 --> 00:08:25,840 Speaker 3: before going to the US Supreme Court sided with the state, 149 00:08:25,880 --> 00:08:27,960 Speaker 3: but it was a four to three decision, and there 150 00:08:27,960 --> 00:08:31,040 Speaker 3: were actually three judges on the Montana Supreme Court who 151 00:08:31,080 --> 00:08:34,960 Speaker 3: dissented and said that for a warrantless search to be reasonable, 152 00:08:35,040 --> 00:08:38,000 Speaker 3: the higher bar or probable cause, must apply, And then 153 00:08:38,000 --> 00:08:40,640 Speaker 3: they went further and added that there was no probable 154 00:08:40,679 --> 00:08:44,240 Speaker 3: cause to believe mister Case was an imminent danger or 155 00:08:44,280 --> 00:08:47,400 Speaker 3: in need of immediate assistants that would have justified the 156 00:08:47,440 --> 00:08:50,480 Speaker 3: warrantless entry into the home. When the case went to 157 00:08:50,520 --> 00:08:53,960 Speaker 3: the Supreme Court and was argued before the justice is there, 158 00:08:54,320 --> 00:08:58,360 Speaker 3: there was virtual unanimity that the standard that had been 159 00:08:58,360 --> 00:09:02,000 Speaker 3: applied by the state was the cour First. For example, 160 00:09:02,160 --> 00:09:06,079 Speaker 3: Justice Thomas noted that the issue or probable cause is 161 00:09:06,120 --> 00:09:09,280 Speaker 3: a standard that is normally limited to the criminal context. 162 00:09:09,280 --> 00:09:12,960 Speaker 3: This was not a criminal investigation, and Justice Robert joined 163 00:09:12,960 --> 00:09:15,800 Speaker 3: in on that to say, when we talk about probable cause, 164 00:09:16,040 --> 00:09:19,520 Speaker 3: we talk about probable cause that a crime is occurring. 165 00:09:19,920 --> 00:09:22,600 Speaker 3: What standard would be used here when we're not talking 166 00:09:22,640 --> 00:09:25,959 Speaker 3: about a crime, but about a risk of injury to somebody? 167 00:09:26,160 --> 00:09:29,320 Speaker 3: And Justice Kagan also jumped in, saying that there is 168 00:09:29,360 --> 00:09:33,280 Speaker 3: a full body of case law out there describing what 169 00:09:33,480 --> 00:09:36,920 Speaker 3: probable cause is. It's not a self defining term. It 170 00:09:36,920 --> 00:09:40,280 Speaker 3: has been raised in many cases, and there is a 171 00:09:40,480 --> 00:09:45,200 Speaker 3: full explanation in the criminal context of what constitutes probable cause, 172 00:09:45,480 --> 00:09:48,760 Speaker 3: but this is something entirely different. And the justices all 173 00:09:48,880 --> 00:09:52,000 Speaker 3: seemed to go back to the Brigham City versus Stewart 174 00:09:52,040 --> 00:09:55,280 Speaker 3: case from two thousand and six to say that the 175 00:09:55,400 --> 00:09:59,680 Speaker 3: standard of objectively reasonable basis for believing that somebody needs 176 00:10:00,000 --> 00:10:03,760 Speaker 3: emergency help. Is this standard that should apply here, and 177 00:10:03,920 --> 00:10:08,840 Speaker 3: Justice Alito and Justice Brown agreed, which doesn't happen very often. 178 00:10:09,040 --> 00:10:12,000 Speaker 3: They both push back on the contention here of the 179 00:10:12,000 --> 00:10:16,040 Speaker 3: defense lawyer that this was an unreasonable act by police. 180 00:10:16,200 --> 00:10:18,760 Speaker 3: Justice Alito went so far as to say, if the 181 00:10:18,840 --> 00:10:21,640 Speaker 3: police couldnot enter the house based on the facts that 182 00:10:21,679 --> 00:10:24,080 Speaker 3: they knew in this case, then I don't know when 183 00:10:24,120 --> 00:10:26,480 Speaker 3: police are ever able to go into a house to 184 00:10:26,480 --> 00:10:30,640 Speaker 3: prevent something from committing suicide. The concern here is that 185 00:10:30,720 --> 00:10:34,360 Speaker 3: if there is a legal standard of probable cause in 186 00:10:34,480 --> 00:10:38,080 Speaker 3: order to go in under these emergency situations, that police 187 00:10:38,120 --> 00:10:41,319 Speaker 3: officers may hesitate to go into a house when somebody's 188 00:10:41,360 --> 00:10:44,079 Speaker 3: life is at risk, And they seem to weigh more 189 00:10:44,200 --> 00:10:48,560 Speaker 3: in favor of protecting the life of an individual and 190 00:10:48,679 --> 00:10:52,720 Speaker 3: allowing police officers more latitude to go in under these 191 00:10:52,760 --> 00:10:56,920 Speaker 3: circumstances than they were about the privacy concerns of entering 192 00:10:56,920 --> 00:10:58,160 Speaker 3: a house without a warrant. 193 00:10:58,600 --> 00:11:00,760 Speaker 2: So do you think that the justice is will just 194 00:11:01,240 --> 00:11:03,839 Speaker 2: announce a standard and that will be the end of 195 00:11:03,880 --> 00:11:04,320 Speaker 2: the case. 196 00:11:04,960 --> 00:11:08,520 Speaker 3: If the Supreme Court decides to uphold the lower court, 197 00:11:08,559 --> 00:11:11,000 Speaker 3: then there was some discussion about what comes next. 198 00:11:11,280 --> 00:11:12,320 Speaker 1: In other words, there were. 199 00:11:12,200 --> 00:11:16,520 Speaker 3: Some justices who said that they should simply rule that 200 00:11:16,559 --> 00:11:19,480 Speaker 3: the lower court was correct and that the standard of 201 00:11:19,640 --> 00:11:24,840 Speaker 3: objectively reasonable was properly applied, and that in this case, 202 00:11:25,040 --> 00:11:28,840 Speaker 3: clearly the facts warranted the police entering the home. Justice 203 00:11:28,880 --> 00:11:31,960 Speaker 3: Soto Manor and Justice Thomas, on the other hand, argued 204 00:11:32,040 --> 00:11:34,040 Speaker 3: that it's the normal practice of the court if they're 205 00:11:34,080 --> 00:11:36,840 Speaker 3: not certain about a standard and state a new standard, 206 00:11:37,040 --> 00:11:39,600 Speaker 3: then it should be sent back to the Montana Supreme 207 00:11:39,640 --> 00:11:43,439 Speaker 3: Court to determine whether, based on these facts, that objectively 208 00:11:43,559 --> 00:11:47,680 Speaker 3: reasonable standard had in fact been satisfied. Justice Alito expressed 209 00:11:47,679 --> 00:11:51,320 Speaker 3: some concern that in doing that it might suggest to 210 00:11:51,360 --> 00:11:53,840 Speaker 3: the lower court that this was in some way a 211 00:11:53,840 --> 00:11:56,800 Speaker 3: close call, and could, he argued, have some kind of 212 00:11:56,800 --> 00:11:59,839 Speaker 3: a killing effect on police when they're trying to determine 213 00:12:00,000 --> 00:12:03,000 Speaker 3: whether to enter a house to prevent somebody from committing suicide. 214 00:12:03,320 --> 00:12:07,559 Speaker 2: And the Supreme Court is usually protective of the expectation 215 00:12:07,720 --> 00:12:11,400 Speaker 2: of privacy in one's own home. And we should point 216 00:12:11,440 --> 00:12:15,520 Speaker 2: out here that some civil rights and privacy groups did 217 00:12:15,559 --> 00:12:18,200 Speaker 2: line up behind the defendant in this case. 218 00:12:18,880 --> 00:12:22,880 Speaker 3: Mister Case's attorney reminded the justices that police had entered 219 00:12:22,880 --> 00:12:26,560 Speaker 3: mister Case's home without permission, without a warrant, or without 220 00:12:26,600 --> 00:12:29,320 Speaker 3: even probable cause, and ended up shooting him in his 221 00:12:29,360 --> 00:12:32,720 Speaker 3: own home. He argued that the reasonablenst standard that the 222 00:12:32,760 --> 00:12:37,040 Speaker 3: state was suggesting was so vague as to invite abuse 223 00:12:37,120 --> 00:12:38,800 Speaker 3: and confusion by law enforcement. 224 00:12:39,440 --> 00:12:42,720 Speaker 2: This is one case this term where it appears you 225 00:12:42,800 --> 00:12:45,880 Speaker 2: never know, but it appears that we know how it's 226 00:12:45,920 --> 00:12:48,720 Speaker 2: going to turn out. But we shall see. Thanks for 227 00:12:48,800 --> 00:12:52,520 Speaker 2: joining me, Bob. That's former federal prosecutor Robert Mintz of 228 00:12:52,679 --> 00:12:56,720 Speaker 2: Macarter and English. Coming up next, the Supreme Court appears 229 00:12:57,000 --> 00:13:01,840 Speaker 2: likely to invalidate Colorado's ban on con perversion therapy for miners. 230 00:13:02,440 --> 00:13:05,200 Speaker 2: I'm June Grosso and you're listening to Bloomberg. 231 00:13:08,320 --> 00:13:12,480 Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio. 232 00:13:13,520 --> 00:13:16,760 Speaker 2: You're listening to a special holiday edition of the Bloomberg 233 00:13:16,840 --> 00:13:21,120 Speaker 2: Law Show. We're looking at several cases before the Supreme Court. 234 00:13:21,600 --> 00:13:26,720 Speaker 2: Colorado Solicitor General Shannon Stevenson defended the state's ban on 235 00:13:26,840 --> 00:13:30,800 Speaker 2: conversion therapy for miners at the Supreme Court. She argued 236 00:13:30,840 --> 00:13:35,160 Speaker 2: that the Constitution allows states to protect patients from harmful, 237 00:13:35,280 --> 00:13:40,520 Speaker 2: discredited treatments even if a regulation incidentally affects speech. 238 00:13:41,040 --> 00:13:43,840 Speaker 8: A healthcare provider cannot be free to violate the standard 239 00:13:43,840 --> 00:13:47,240 Speaker 8: of care just because they are using words, and a 240 00:13:47,280 --> 00:13:50,160 Speaker 8: state cannot be required to let its vulnerable young people 241 00:13:50,480 --> 00:13:53,920 Speaker 8: waste their time and money on an ineffective, harmful treatment 242 00:13:54,520 --> 00:13:56,760 Speaker 8: just because that treatment is delivered through words. 243 00:13:57,160 --> 00:14:01,840 Speaker 2: An evangelical Christian therapist is challenging the law, saying it 244 00:14:01,960 --> 00:14:06,440 Speaker 2: violates her free speech rights, and the court's conservative justices 245 00:14:06,720 --> 00:14:11,000 Speaker 2: appeared to agree with her, questioning the constitutionality of the law. 246 00:14:11,520 --> 00:14:15,360 Speaker 2: Here are Chief Justice John Roberts and Justice Samuel Alito. 247 00:14:15,840 --> 00:14:20,640 Speaker 9: In other words, just because they're engaged in conduct doesn't 248 00:14:20,680 --> 00:14:22,160 Speaker 9: mean that their words aren't protected. 249 00:14:23,040 --> 00:14:25,120 Speaker 5: Looks like blatant viewpoint discrimination. 250 00:14:25,440 --> 00:14:30,200 Speaker 2: Liberal Justices Sonya Sotomayor and Katanji Brown Jackson were the 251 00:14:30,240 --> 00:14:34,640 Speaker 2: only justices who addressed the harms of conversion therapy that 252 00:14:34,800 --> 00:14:38,280 Speaker 2: every major medical association warns about. 253 00:14:38,440 --> 00:14:42,880 Speaker 10: There are studies that say that this advice does harm 254 00:14:42,960 --> 00:14:46,840 Speaker 10: the people emotionally and physically. 255 00:14:47,280 --> 00:14:51,240 Speaker 2: And Justice Jackson questioned why the Colorado law should be 256 00:14:51,320 --> 00:14:54,840 Speaker 2: struck down when in June the court upheld a different 257 00:14:54,880 --> 00:14:59,760 Speaker 2: measure from Tennessee that bans transition related treatments for transgender 258 00:14:59,800 --> 00:15:00,400 Speaker 2: care kids. 259 00:15:00,920 --> 00:15:04,200 Speaker 11: The regulations work in basically the same way, and the 260 00:15:04,280 --> 00:15:08,640 Speaker 11: question of scrutiny applies in both contexts, so it just 261 00:15:08,680 --> 00:15:10,600 Speaker 11: seems odd to me that we might have a different 262 00:15:10,640 --> 00:15:11,320 Speaker 11: result here. 263 00:15:11,800 --> 00:15:15,240 Speaker 2: My guest is First Amendment expert Caroline Mala Corbin, a 264 00:15:15,320 --> 00:15:19,280 Speaker 2: professor at the University of Miami Law School. Caroline, will 265 00:15:19,320 --> 00:15:23,480 Speaker 2: you explain conversion therapy and Colorado's law banning it. 266 00:15:23,800 --> 00:15:28,000 Speaker 12: As about half the states in the country have done. 267 00:15:28,000 --> 00:15:33,480 Speaker 12: Colorado bans something that has been called gay conversion therapy, 268 00:15:34,120 --> 00:15:37,600 Speaker 12: and it's the idea of trying to convince someone who 269 00:15:37,640 --> 00:15:40,760 Speaker 12: is gay that they're not actually gay, or trying to 270 00:15:40,760 --> 00:15:43,880 Speaker 12: convince someone who is trans that they're not actually trans. 271 00:15:44,160 --> 00:15:48,360 Speaker 12: And this approach to gay and trans people has been 272 00:15:48,800 --> 00:15:53,240 Speaker 12: proven to be very delictorious for their mental well being, 273 00:15:53,920 --> 00:15:58,080 Speaker 12: and so states have forbidden it. They have made it 274 00:15:58,120 --> 00:16:04,480 Speaker 12: illegal for license medical professionals to provide this as part 275 00:16:04,680 --> 00:16:08,480 Speaker 12: of their practice of medicine. So to be very clear, 276 00:16:08,720 --> 00:16:12,920 Speaker 12: it doesn't ban clergy from talking to people about sexual 277 00:16:12,920 --> 00:16:16,680 Speaker 12: orientation or gender identity, and it doesn't even ban the 278 00:16:16,680 --> 00:16:19,880 Speaker 12: therapists from talking about it in their own free time. 279 00:16:20,400 --> 00:16:24,360 Speaker 12: But if they are in the process of providing health 280 00:16:24,440 --> 00:16:29,320 Speaker 12: care services that they have been licensed to provide, they're 281 00:16:29,400 --> 00:16:32,680 Speaker 12: not allowed to try and convince gay people that they're 282 00:16:32,760 --> 00:16:36,760 Speaker 12: not gay, or trans people that they're not trans. That's 283 00:16:36,800 --> 00:16:37,760 Speaker 12: the law, and. 284 00:16:37,680 --> 00:16:39,880 Speaker 2: What's the fundamental issue in the case. 285 00:16:40,440 --> 00:16:43,880 Speaker 12: So you have this law. It says, if you're licensed 286 00:16:43,880 --> 00:16:46,320 Speaker 12: by the state, the state does not allow you to 287 00:16:46,360 --> 00:16:49,720 Speaker 12: do things that are contrary to the standard of care, 288 00:16:50,000 --> 00:16:54,120 Speaker 12: and so you cannot provide conversion therapy. And we have 289 00:16:54,240 --> 00:16:59,760 Speaker 12: this white Christian woman who argues that the ban forbids 290 00:16:59,760 --> 00:17:03,400 Speaker 12: her from providing the type of therapy that she wants 291 00:17:03,600 --> 00:17:07,800 Speaker 12: to practice. She gets help from Alliance to Friending Freedom. 292 00:17:08,160 --> 00:17:11,000 Speaker 12: And so the question before the court is does this 293 00:17:11,160 --> 00:17:17,880 Speaker 12: ban on this medical therapy violate the licensed practitioners free 294 00:17:17,920 --> 00:17:21,080 Speaker 12: speech rights. And so the question before the court is 295 00:17:21,280 --> 00:17:27,200 Speaker 12: does this ban on this medical therapy violate the licensed 296 00:17:27,320 --> 00:17:33,639 Speaker 12: practitioners free speech rights? And the legal question that makes 297 00:17:33,680 --> 00:17:39,640 Speaker 12: all the difference is whether providing conversion therapy is speech 298 00:17:40,320 --> 00:17:44,840 Speaker 12: or whether it's conduct. Because if it's speech, then it 299 00:17:44,960 --> 00:17:50,760 Speaker 12: implicates the free speech clause. In fact, it becomes presumptively unconstitutional. If, 300 00:17:50,800 --> 00:17:55,360 Speaker 12: on the other hand, it's considered conduct, then it doesn't 301 00:17:55,400 --> 00:17:58,520 Speaker 12: trigger the free speech clause and the government is likely 302 00:17:58,600 --> 00:18:01,399 Speaker 12: to be allowed to regulate it. So the million dollar 303 00:18:02,040 --> 00:18:08,400 Speaker 12: constitutional question is how should this practice of conversion therapy 304 00:18:08,560 --> 00:18:12,960 Speaker 12: get characterize? Is it speech or is it conduct? Now, 305 00:18:13,000 --> 00:18:16,240 Speaker 12: I just want to point out that the speech in 306 00:18:16,280 --> 00:18:21,159 Speaker 12: the colloquial sense doesn't always match speech in the constitutional sense. 307 00:18:21,800 --> 00:18:23,960 Speaker 12: So let me give you a couple of examples when 308 00:18:24,240 --> 00:18:29,879 Speaker 12: speech is not actually speech, which seems counterintuitive. And yet 309 00:18:30,240 --> 00:18:36,000 Speaker 12: if for example, you told national security secrets to a 310 00:18:36,080 --> 00:18:40,080 Speaker 12: foreign enemy, that's speech, but that it wouldn't be treated 311 00:18:40,119 --> 00:18:43,960 Speaker 12: as speech. It would be treated as the conduct of treason. 312 00:18:44,160 --> 00:18:47,760 Speaker 12: It's not protected by the free speech cause. Or for example, 313 00:18:48,600 --> 00:18:51,080 Speaker 12: a sign on a restaurant that said we do not 314 00:18:51,440 --> 00:18:54,000 Speaker 12: hire fill in the blank, we do not hire black 315 00:18:54,040 --> 00:18:58,320 Speaker 12: people or Latino people or Asian people. That's words, but 316 00:18:58,359 --> 00:19:02,520 Speaker 12: that would be considered speech. It would be considered the 317 00:19:02,600 --> 00:19:06,720 Speaker 12: act of discrimination. And so while it may seem really 318 00:19:06,960 --> 00:19:10,600 Speaker 12: obvious on its face, well this is words and therefore 319 00:19:10,640 --> 00:19:14,760 Speaker 12: it's speech, it's not quite as clear cut as the 320 00:19:14,800 --> 00:19:18,040 Speaker 12: Supreme Court is going to probably conclude. 321 00:19:18,880 --> 00:19:22,920 Speaker 2: It seems like there is almost universal agreement among those 322 00:19:22,960 --> 00:19:26,800 Speaker 2: who listen to the oral arguments that the Christian counselor 323 00:19:27,119 --> 00:19:28,080 Speaker 2: is going to win here. 324 00:19:28,760 --> 00:19:34,480 Speaker 12: I mean, clearly, whenever you have a white conservative Christian 325 00:19:35,240 --> 00:19:38,639 Speaker 12: arguing before the Supreme Court, they're going to win, especially 326 00:19:38,680 --> 00:19:41,119 Speaker 12: if the only thing that's stake, and I say only 327 00:19:41,560 --> 00:19:46,439 Speaker 12: from the court's perspective is LGBTQ rights. They just don't care, right, So, 328 00:19:46,640 --> 00:19:50,159 Speaker 12: I think it was a foregone conclusion, apart from any 329 00:19:50,200 --> 00:19:54,080 Speaker 12: of the legal principles, that the white Christian woman was 330 00:19:54,119 --> 00:19:56,360 Speaker 12: going to win. You know, I never used to predict 331 00:19:56,400 --> 00:19:59,560 Speaker 12: the outcome of Supreme Court cases, but it seems the 332 00:19:59,640 --> 00:20:03,320 Speaker 12: pattern is so clear these days that I think one 333 00:20:03,320 --> 00:20:05,840 Speaker 12: could say with a certain degree of confidence that she's 334 00:20:05,880 --> 00:20:09,560 Speaker 12: going to win. And they're basically going to say this 335 00:20:09,600 --> 00:20:15,040 Speaker 12: is speech, and therefore it is presumptively unconstitutional, and only 336 00:20:15,080 --> 00:20:19,560 Speaker 12: if the government has a super compelling justification for its law, 337 00:20:20,119 --> 00:20:24,760 Speaker 12: and the law was the only way to accomplish its goals, 338 00:20:24,840 --> 00:20:27,080 Speaker 12: it's not going to win. In other words, it's going 339 00:20:27,119 --> 00:20:29,240 Speaker 12: to have to pass what is known as strict scrutiny, 340 00:20:29,560 --> 00:20:30,800 Speaker 12: and that is very hard to do. 341 00:20:30,880 --> 00:20:33,840 Speaker 2: In the speech context, it seemed like most of the 342 00:20:33,880 --> 00:20:37,120 Speaker 2: discussion was about what standard should be applied here. 343 00:20:37,720 --> 00:20:42,919 Speaker 12: Well, that's because if it is considered speech, then the 344 00:20:42,960 --> 00:20:45,800 Speaker 12: standard is going to be strict scrutiny, and if it 345 00:20:45,880 --> 00:20:48,959 Speaker 12: is not speech, then it's only going to be rational 346 00:20:49,000 --> 00:20:53,280 Speaker 12: basis scrutiny. So what level of scrutiny a court must 347 00:20:53,400 --> 00:20:57,240 Speaker 12: give to this law, how hard it looks at it, 348 00:20:57,359 --> 00:21:02,080 Speaker 12: questions it, The level of evidence the government needs to 349 00:21:02,119 --> 00:21:06,320 Speaker 12: provide will depend on whether it is speech or conduct, 350 00:21:06,440 --> 00:21:10,520 Speaker 12: because again, if it is speech, then it implicates the 351 00:21:10,560 --> 00:21:11,520 Speaker 12: free speech clause. 352 00:21:12,240 --> 00:21:15,359 Speaker 2: Is this a novel issue coming to the court? Have 353 00:21:15,440 --> 00:21:17,720 Speaker 2: they decided any similar cases? 354 00:21:18,040 --> 00:21:22,760 Speaker 12: The Supreme Court is not deciding this against a blank slate. 355 00:21:23,240 --> 00:21:28,080 Speaker 12: They have already considered the question of medical treatment and 356 00:21:28,200 --> 00:21:32,000 Speaker 12: speech conduct. But in the abortion context. So I want 357 00:21:32,000 --> 00:21:36,160 Speaker 12: to highlight that many states who are hostile to abortion. 358 00:21:36,480 --> 00:21:39,720 Speaker 12: One of the things that they require their abortion providers 359 00:21:39,760 --> 00:21:45,399 Speaker 12: to do is to give women certain information about abortion. So, 360 00:21:45,680 --> 00:21:49,760 Speaker 12: for example, you have to let women know that adoption 361 00:21:49,920 --> 00:21:53,520 Speaker 12: is an option, or that fathers have to pay child support. 362 00:21:53,720 --> 00:21:56,679 Speaker 12: Other states have held that women have to be told 363 00:21:56,920 --> 00:21:59,399 Speaker 12: all the harms that may result from abortion, some of 364 00:21:59,400 --> 00:22:02,159 Speaker 12: which are not even medically accurate. But the point I 365 00:22:02,200 --> 00:22:06,040 Speaker 12: want to make here is that doctors challenge this regulation 366 00:22:06,200 --> 00:22:10,640 Speaker 12: on speech grounds and argued, the government is forcing us 367 00:22:10,680 --> 00:22:14,560 Speaker 12: to say things that are contrary to what we believe 368 00:22:14,880 --> 00:22:19,480 Speaker 12: is appropriate and correct. And you might think, well, these 369 00:22:19,480 --> 00:22:23,520 Speaker 12: are words, and they're being forced to articulate a particular 370 00:22:23,720 --> 00:22:27,840 Speaker 12: viewpoint on things, for example, don't have an abortion, you know, 371 00:22:28,160 --> 00:22:31,439 Speaker 12: adopt your child out instead. That it too, should be 372 00:22:31,560 --> 00:22:36,040 Speaker 12: considered a regulation of speech that sort of compels a viewpoint. 373 00:22:36,200 --> 00:22:40,480 Speaker 12: It's a viewpoint based restriction and therefore should trigger strict 374 00:22:40,520 --> 00:22:44,920 Speaker 12: scrutiny and be presumptively unconstitutional. But that is not what 375 00:22:44,960 --> 00:22:48,560 Speaker 12: the Supreme Court did. What the Supreme Court said is 376 00:22:48,600 --> 00:22:52,640 Speaker 12: that these laws that compel doctors to speak against their 377 00:22:52,640 --> 00:22:55,320 Speaker 12: will and say things that they don't want to say. 378 00:22:55,960 --> 00:22:59,800 Speaker 12: The Supreme Court helped that is not a regulation of speech, 379 00:23:00,480 --> 00:23:04,760 Speaker 12: that is actually a regulation of the medical profession that 380 00:23:04,960 --> 00:23:11,080 Speaker 12: only incidentally affects speech. So they're designing this case against 381 00:23:11,119 --> 00:23:16,159 Speaker 12: a backdrop of the Supreme Court already having held in 382 00:23:16,240 --> 00:23:20,600 Speaker 12: a different context that speech that is connected to the 383 00:23:20,640 --> 00:23:24,960 Speaker 12: provision of medical treatment is not necessarily going to be 384 00:23:25,080 --> 00:23:29,040 Speaker 12: treated like speech. And so you know, oh, it just 385 00:23:29,080 --> 00:23:33,280 Speaker 12: so happens, right that if you're challenging something that's anti abortion, 386 00:23:33,840 --> 00:23:38,320 Speaker 12: it's not speech, but if you're challenging something that's pro LGBT, 387 00:23:39,320 --> 00:23:40,160 Speaker 12: it is speech. 388 00:23:40,880 --> 00:23:44,560 Speaker 2: The Supreme Court has been steadily rolling back protections for 389 00:23:44,680 --> 00:23:48,240 Speaker 2: gay and transgender people in recent terms. The last time 390 00:23:48,359 --> 00:23:53,199 Speaker 2: I can think of that LGBTQ writs one at the 391 00:23:53,240 --> 00:23:56,879 Speaker 2: Supreme Court was the boss Stock case in twenty twenty. 392 00:23:57,000 --> 00:23:58,320 Speaker 2: Is that the last time. 393 00:23:58,400 --> 00:24:02,600 Speaker 12: I think so, and I think they have really undermined 394 00:24:02,640 --> 00:24:11,520 Speaker 12: their own credibility by so aggressively promoting a particular ideology, 395 00:24:12,320 --> 00:24:16,200 Speaker 12: and to do so at the expense of a marginalized 396 00:24:16,200 --> 00:24:20,560 Speaker 12: community is not to their honor. And let's be clear, 397 00:24:20,960 --> 00:24:24,240 Speaker 12: they get to pick and choose their cases. There was 398 00:24:24,320 --> 00:24:29,240 Speaker 12: nothing that require them to decide this case. I think, 399 00:24:29,280 --> 00:24:35,119 Speaker 12: in addition to its long standing attack on the LGB community. 400 00:24:35,600 --> 00:24:40,640 Speaker 12: I think we also are seeing here a real disparagement 401 00:24:41,080 --> 00:24:46,439 Speaker 12: of expertise, which we also saw in Scremtti, because to 402 00:24:46,480 --> 00:24:50,879 Speaker 12: be clear, there is a consensus in the medical community 403 00:24:51,320 --> 00:24:55,360 Speaker 12: that this therapy is really harmful, and yet they did 404 00:24:55,400 --> 00:25:00,000 Speaker 12: not seem to accept that. Instead, they kept pushing back 405 00:25:00,080 --> 00:25:04,440 Speaker 12: against this idea that the experts knew what they were 406 00:25:04,480 --> 00:25:09,080 Speaker 12: talking about, and certainly Alliance Defending Freedom is helping them 407 00:25:09,200 --> 00:25:15,600 Speaker 12: by producing all kinds of questionable claims about the reliability 408 00:25:15,880 --> 00:25:21,080 Speaker 12: of the science underlying the medical consensus. And to be sure, 409 00:25:21,400 --> 00:25:24,679 Speaker 12: the medical community has made errors in the past, but 410 00:25:24,840 --> 00:25:28,800 Speaker 12: if we have to rely on something, you know, better 411 00:25:28,880 --> 00:25:33,159 Speaker 12: to rely on medical experts and the weight of the 412 00:25:33,200 --> 00:25:38,320 Speaker 12: medical community than a right wing political group. 413 00:25:38,520 --> 00:25:42,520 Speaker 2: And the decision here will implicate similar bands on conversion 414 00:25:42,680 --> 00:25:46,840 Speaker 2: therapy in twenty six other states. Thanks so much, Caroline. 415 00:25:47,160 --> 00:25:51,399 Speaker 2: That's Professor Caroline Malacorbin of the University of Miami Law School. 416 00:25:51,680 --> 00:25:55,000 Speaker 2: Coming up next, When can a criminal defense attorney be 417 00:25:55,119 --> 00:25:58,720 Speaker 2: barred from talking to his client about his testimony? I'm 418 00:25:58,760 --> 00:26:00,840 Speaker 2: June Grosso and you're listening to Bloomberg. 419 00:26:03,720 --> 00:26:07,960 Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. 420 00:26:08,800 --> 00:26:11,879 Speaker 2: Thanks for listening to a special holiday edition of Bloomberg 421 00:26:12,000 --> 00:26:15,560 Speaker 2: Law as we focus on cases before the Supreme Court. 422 00:26:16,520 --> 00:26:20,119 Speaker 2: It's the most difficult decision a criminal defendant has to 423 00:26:20,200 --> 00:26:23,160 Speaker 2: make a trial, whether or not to take the stand. 424 00:26:23,640 --> 00:26:27,399 Speaker 2: And when a defendant decides to take the risk of testifying, 425 00:26:27,760 --> 00:26:31,480 Speaker 2: what role does his attorney play. David Villarreal took the 426 00:26:31,600 --> 00:26:36,000 Speaker 2: stand during his trial in twenty eighteen for murdering his boyfriend, 427 00:26:36,400 --> 00:26:39,480 Speaker 2: but when there was an overnight break in his testimony, 428 00:26:39,800 --> 00:26:44,280 Speaker 2: the judge barred villar Rial's attorney from discussing his testimony 429 00:26:44,320 --> 00:26:47,280 Speaker 2: with him. He was convicted, and in his appeal to 430 00:26:47,320 --> 00:26:52,160 Speaker 2: the Supreme Court, Villarial argues that the judge's order denied 431 00:26:52,240 --> 00:26:56,400 Speaker 2: him effective assistance of counsel in violation of the sixth Amendment. 432 00:26:56,800 --> 00:27:00,399 Speaker 2: During the oral arguments, the justice's question just what a 433 00:27:00,440 --> 00:27:03,480 Speaker 2: trial lawyer could talk to his client about during an 434 00:27:03,520 --> 00:27:07,960 Speaker 2: overnight break in his testimony without crossing over into coaching 435 00:27:08,000 --> 00:27:12,919 Speaker 2: the client's testimony. Chief Justice John Roberts posed a hypothetical 436 00:27:13,000 --> 00:27:16,359 Speaker 2: to the lawyer for Texas about a defendant asking his 437 00:27:16,480 --> 00:27:20,680 Speaker 2: attorney whether he should stop testifying about fred when he 438 00:27:20,720 --> 00:27:22,280 Speaker 2: got back on the stand. 439 00:27:22,920 --> 00:27:25,399 Speaker 9: And I notice every time I do that, you know, 440 00:27:25,480 --> 00:27:28,120 Speaker 9: Juring number eight gets a big frown and shakes his head. 441 00:27:28,359 --> 00:27:30,359 Speaker 9: He doesn't look to me like he likes the idea 442 00:27:30,400 --> 00:27:33,600 Speaker 9: of talking about Fred at all. So I think that's 443 00:27:33,600 --> 00:27:36,959 Speaker 9: a bad idea. Now, talking about Fred was your idea? 444 00:27:37,160 --> 00:27:38,160 Speaker 1: Do you still think it's. 445 00:27:38,080 --> 00:27:39,479 Speaker 7: A good idea? 446 00:27:39,640 --> 00:27:41,600 Speaker 9: Can the lawyer respond to that question? 447 00:27:43,280 --> 00:27:45,600 Speaker 7: No, they you would have to tell them I'm mom 448 00:27:45,680 --> 00:27:47,600 Speaker 7: to a core order not to out to answer. 449 00:27:47,600 --> 00:27:49,639 Speaker 9: So at that point he tells the defendant who's facing 450 00:27:49,680 --> 00:27:51,320 Speaker 9: a capital sentence, I'm not going. 451 00:27:51,240 --> 00:27:51,600 Speaker 4: To tell you. 452 00:27:51,960 --> 00:27:55,119 Speaker 2: And Justice Elaina Kagan wanted to know about a lawyer 453 00:27:55,240 --> 00:27:58,960 Speaker 2: giving his client some tips on his performance on the stand. 454 00:27:59,400 --> 00:28:03,720 Speaker 13: Do you think that counsel can say, listen, I've been 455 00:28:03,760 --> 00:28:08,560 Speaker 13: noticing that you've been mumbling, and you're also not making 456 00:28:08,720 --> 00:28:12,720 Speaker 13: eye contact with the questioner, and it would just be 457 00:28:12,760 --> 00:28:15,880 Speaker 13: a good idea if you'd stopped mumbling and made eye contact. 458 00:28:16,040 --> 00:28:19,200 Speaker 13: Can the lawyer do that in an overnight recess? 459 00:28:19,560 --> 00:28:23,480 Speaker 2: The appeals courts are split on whether so called non 460 00:28:23,560 --> 00:28:29,280 Speaker 2: conferral orders during overnight trial recesses are constitutional. Joining Me 461 00:28:29,359 --> 00:28:33,280 Speaker 2: is former Manhattan prosecutor and criminal defense attorney. Paul Callan 462 00:28:33,680 --> 00:28:37,320 Speaker 2: of counsel at Edelman and Edelman. Paul tell us about 463 00:28:37,400 --> 00:28:38,360 Speaker 2: the facts here. 464 00:28:38,960 --> 00:28:43,480 Speaker 4: The defendant, David Villarreal, was a meth addict allegedly who 465 00:28:43,520 --> 00:28:46,360 Speaker 4: stabbed his boyfriend to death, and he goes to trial, 466 00:28:46,600 --> 00:28:50,120 Speaker 4: and something happened in that trial, and it's something that's 467 00:28:50,320 --> 00:28:53,640 Speaker 4: very common in the trial of civil and criminal cases, 468 00:28:53,760 --> 00:28:57,240 Speaker 4: and that is he was on the witness stand testifying 469 00:28:57,600 --> 00:29:00,760 Speaker 4: and the judge decided to break for the day. It 470 00:29:00,840 --> 00:29:04,360 Speaker 4: was about one o'clock in the afternoon, and the judge 471 00:29:04,400 --> 00:29:08,720 Speaker 4: gave an instruction which suggested that the defense attorney should 472 00:29:08,720 --> 00:29:13,640 Speaker 4: not discuss testimony overnight with his clients because he was 473 00:29:13,680 --> 00:29:17,360 Speaker 4: on the witness stand. And later on he's convicted, sentenced 474 00:29:17,360 --> 00:29:19,920 Speaker 4: to sixty years in prison, and now he's seeking to 475 00:29:20,000 --> 00:29:23,920 Speaker 4: reverse the case, saying that instruction impeded his right to 476 00:29:23,960 --> 00:29:26,800 Speaker 4: consult with counsel, pursuing to the sixth Amendment. 477 00:29:27,080 --> 00:29:29,200 Speaker 2: So there was a lot of talk during the oral 478 00:29:29,320 --> 00:29:33,760 Speaker 2: arguments about coaching your client. Is there a clear line 479 00:29:33,760 --> 00:29:39,040 Speaker 2: between what's permissible and what's impermissible when coaching a client 480 00:29:39,200 --> 00:29:41,480 Speaker 2: or preparing a client to testify. 481 00:29:42,120 --> 00:29:45,640 Speaker 4: Well, there's a line across and we call it subornation 482 00:29:45,880 --> 00:29:49,840 Speaker 4: of perjury if a lawyer goes too far in giving 483 00:29:49,880 --> 00:29:53,640 Speaker 4: advice to his client about how he should shape his testimony. 484 00:29:53,880 --> 00:29:57,640 Speaker 4: And so lawyers always have to deal with this situation 485 00:29:57,800 --> 00:30:01,360 Speaker 4: that they can't give advice that would constantly subornation of perjury. 486 00:30:01,600 --> 00:30:04,600 Speaker 4: Lawyers do, and it's their job to give a client 487 00:30:04,640 --> 00:30:07,800 Speaker 4: advice though, about how to testify and a witness stand, 488 00:30:08,040 --> 00:30:10,800 Speaker 4: how to conduct themself on the witness stand, how to 489 00:30:10,880 --> 00:30:14,080 Speaker 4: reactive as an objection made in court, all kinds of 490 00:30:14,160 --> 00:30:17,960 Speaker 4: technical aspects of testimony like that. Clearly lawyers are allowed 491 00:30:18,000 --> 00:30:20,560 Speaker 4: to give that kind of advice. But this is a 492 00:30:20,600 --> 00:30:22,800 Speaker 4: situation that comes up all the time in both civil 493 00:30:22,880 --> 00:30:25,280 Speaker 4: and criminal cases. When there's a recess in the case, 494 00:30:25,640 --> 00:30:27,840 Speaker 4: the client wants to talk to the lawyer how am 495 00:30:27,880 --> 00:30:30,080 Speaker 4: I doing? Am I doing okay on the witness stand? 496 00:30:30,520 --> 00:30:33,720 Speaker 4: And the lawyer wants to encourage them and say, yes, yes, 497 00:30:33,760 --> 00:30:36,560 Speaker 4: you're doing great, you know, or no, that was a 498 00:30:36,680 --> 00:30:39,080 Speaker 4: stupid answer you gave, you know, try to listen to 499 00:30:39,120 --> 00:30:41,480 Speaker 4: the questions that are being asked. So there are a 500 00:30:41,600 --> 00:30:45,400 Speaker 4: variety of ways that lawyers approach this thing. So the 501 00:30:45,520 --> 00:30:48,000 Speaker 4: courts really have gone back and forth on it. There 502 00:30:48,040 --> 00:30:52,440 Speaker 4: are some court decisions saying that during the course of testimony, 503 00:30:52,480 --> 00:30:56,200 Speaker 4: if there's a brief recess fifteen twenty minute recess, you 504 00:30:56,240 --> 00:30:58,840 Speaker 4: can talk to your client, but you shouldn't discuss testimony 505 00:30:59,000 --> 00:31:02,840 Speaker 4: during that time period. When there's a long adjournment like overnight, 506 00:31:03,120 --> 00:31:06,320 Speaker 4: then it gets really tricky because really most lawyers think 507 00:31:06,360 --> 00:31:10,320 Speaker 4: they shouldn't be discussing testimony with the client, but there 508 00:31:10,360 --> 00:31:12,880 Speaker 4: may be other things that have to be discussed. Should 509 00:31:12,920 --> 00:31:16,360 Speaker 4: I recommend a plead because the testimony is going so badly? 510 00:31:16,640 --> 00:31:19,240 Speaker 4: Should I tell the witness that if he's going to 511 00:31:19,240 --> 00:31:22,200 Speaker 4: stick with this kind of a story, we need another witness. 512 00:31:22,320 --> 00:31:24,240 Speaker 4: You know, maybe he's got a friend who was refusing 513 00:31:24,280 --> 00:31:26,480 Speaker 4: to testify, but now you say, you know, he's got 514 00:31:26,480 --> 00:31:28,880 Speaker 4: to come in and testify given the way your testimony 515 00:31:28,920 --> 00:31:32,360 Speaker 4: is going. So there's sort of an interreaction between testimony 516 00:31:32,720 --> 00:31:36,160 Speaker 4: and even testimony that you're not trying to shape, and 517 00:31:36,520 --> 00:31:39,040 Speaker 4: how it affects other aspects of the case as the 518 00:31:39,040 --> 00:31:42,880 Speaker 4: case proceeds. So this is a really tricky question for lawyers, 519 00:31:43,040 --> 00:31:44,960 Speaker 4: and this will be a closely watched case. 520 00:31:45,400 --> 00:31:48,800 Speaker 2: Some of the justices seem to be leaning toward a 521 00:31:48,920 --> 00:31:53,000 Speaker 2: type of limited instruction where the lawyer is prohibited from 522 00:31:53,040 --> 00:31:58,120 Speaker 2: directly discussing the testimony with the client during an overnight break, 523 00:31:58,320 --> 00:32:02,960 Speaker 2: but is allowed to discuss broader trial strategies and issues 524 00:32:02,960 --> 00:32:07,320 Speaker 2: that relate to testimony. And Villa Reale's attorney argued that 525 00:32:07,320 --> 00:32:11,080 Speaker 2: that rule is unworkable in the real world, and just 526 00:32:11,120 --> 00:32:15,240 Speaker 2: as Sonya Sotmayor gave an example of a lawyer suggesting 527 00:32:15,280 --> 00:32:17,560 Speaker 2: that a client take a plea in the middle of 528 00:32:17,560 --> 00:32:20,560 Speaker 2: his testimony, that showed why it's unworkable. 529 00:32:21,240 --> 00:32:26,360 Speaker 10: I find it impossible for a lawyer to say I 530 00:32:26,480 --> 00:32:29,920 Speaker 10: think you should consider a plea bargain now, and that 531 00:32:29,960 --> 00:32:33,080 Speaker 10: the defendant is not going to say, but why, And 532 00:32:33,120 --> 00:32:36,640 Speaker 10: the why has to be my considered judgment that gets 533 00:32:36,640 --> 00:32:41,240 Speaker 10: me from here to the corner and back with nobody 534 00:32:41,280 --> 00:32:46,040 Speaker 10: paying me. Okay, you need to say something. But model 535 00:32:46,120 --> 00:32:49,400 Speaker 10: rule says a lawyer shall explain a matter to the 536 00:32:49,480 --> 00:32:53,600 Speaker 10: extent reasonably necessary to make an informed decision. 537 00:32:54,720 --> 00:32:57,719 Speaker 2: I mean it's very hard to draw a line in 538 00:32:57,760 --> 00:32:58,920 Speaker 2: these circumstances. 539 00:33:00,120 --> 00:33:03,520 Speaker 4: Yes, Villaryal's lawyer made a very compelling argument in that regard, 540 00:33:03,960 --> 00:33:07,400 Speaker 4: because so much of the client's testimony. I mean, if 541 00:33:07,400 --> 00:33:09,160 Speaker 4: you put a defendant on the witness stand in a 542 00:33:09,200 --> 00:33:13,040 Speaker 4: criminal case. His testimony is now the key evidence of 543 00:33:13,120 --> 00:33:17,480 Speaker 4: the entire case, and if it triggers problems, that may 544 00:33:17,680 --> 00:33:19,800 Speaker 4: cause you as a lawyer to have to go out 545 00:33:19,840 --> 00:33:23,160 Speaker 4: and get another witness or maybe bring in some kind 546 00:33:23,160 --> 00:33:26,800 Speaker 4: of an expert, because he's raised something about the impossibility 547 00:33:26,920 --> 00:33:29,680 Speaker 4: of how a bullet was fired or was aimed when 548 00:33:29,680 --> 00:33:32,000 Speaker 4: the murder's shot was fired, or a stab wound it 549 00:33:32,000 --> 00:33:35,360 Speaker 4: would be in this case. Yeah, the testimony interacts, from 550 00:33:35,560 --> 00:33:38,440 Speaker 4: the legal standpoint, with all of the evidence in the case. 551 00:33:38,880 --> 00:33:42,360 Speaker 4: So you restrict the lawyer's ability to talk to the client. 552 00:33:42,800 --> 00:33:45,360 Speaker 4: You can't just keep it down to the testimony alone. 553 00:33:45,400 --> 00:33:48,120 Speaker 4: Everything interacts with everything else. That's what build in the 554 00:33:48,120 --> 00:33:49,600 Speaker 4: way of his lawyers are arguing. 555 00:33:50,040 --> 00:33:54,680 Speaker 2: Justice Elena Kaig and ask this of Texas's lawyer. Do 556 00:33:54,720 --> 00:33:57,760 Speaker 2: you think that counsel can say, listen, I've been noticing 557 00:33:57,800 --> 00:34:00,920 Speaker 2: that you've been mumbling, and you're also not making eye 558 00:34:00,960 --> 00:34:03,680 Speaker 2: contact with the questioner, and it would just be a 559 00:34:03,720 --> 00:34:06,880 Speaker 2: good idea if you'd stop mumbling and made eye contact. 560 00:34:07,280 --> 00:34:10,960 Speaker 2: Can the lawyer do that in an overnight recess? Texas's 561 00:34:11,000 --> 00:34:14,200 Speaker 2: attorney said no, I would consider that to be coaching 562 00:34:14,239 --> 00:34:17,640 Speaker 2: their testimony as far as how you present yourself to 563 00:34:17,719 --> 00:34:21,719 Speaker 2: the jury. Of course, he's defending the conviction for Texas, 564 00:34:21,920 --> 00:34:24,680 Speaker 2: so he's coming at the question from a different angle. 565 00:34:24,960 --> 00:34:26,520 Speaker 2: But do you think that would be coaching. 566 00:34:27,160 --> 00:34:30,200 Speaker 4: Well, whether it's coaching or not, I don't know. It 567 00:34:30,280 --> 00:34:33,160 Speaker 4: probably is coaching. But that kind of coaching is exactly 568 00:34:33,200 --> 00:34:35,360 Speaker 4: what you get hired to do as a lawyer, to 569 00:34:35,880 --> 00:34:39,600 Speaker 4: school your client in how he can present his truthful 570 00:34:39,719 --> 00:34:43,359 Speaker 4: testimony in the best way possible to the jury. And 571 00:34:43,880 --> 00:34:48,080 Speaker 4: I think most lawyers view this situation where a client 572 00:34:48,120 --> 00:34:50,680 Speaker 4: is on the witness stand that they will not often 573 00:34:51,000 --> 00:34:55,279 Speaker 4: hamper with the content of the testimony in their discussions 574 00:34:55,280 --> 00:34:59,240 Speaker 4: with the client, but they may say, listen, stop looking down. 575 00:34:59,440 --> 00:35:02,280 Speaker 4: It's making you look guilty. Look at a guy who's 576 00:35:02,320 --> 00:35:04,960 Speaker 4: asking you the question. And it's okay to glance over 577 00:35:05,000 --> 00:35:07,520 Speaker 4: at the jurors from time to time with your head up. 578 00:35:07,760 --> 00:35:10,680 Speaker 4: And I mean, this just has to do with presentation 579 00:35:11,360 --> 00:35:14,040 Speaker 4: of the testimony to the jury as opposed to the 580 00:35:14,080 --> 00:35:16,640 Speaker 4: truth or falsity of the testimony. And I think that's 581 00:35:16,680 --> 00:35:21,160 Speaker 4: perfectly proper that kind of instruction to a client during testimony. 582 00:35:21,440 --> 00:35:24,319 Speaker 2: Of course, you can never tell for sure from oral 583 00:35:24,440 --> 00:35:27,879 Speaker 2: arguments how the justices will rule. But it seemed to 584 00:35:27,920 --> 00:35:32,640 Speaker 2: me that the defendant didn't have five votes, that the 585 00:35:32,760 --> 00:35:37,000 Speaker 2: majority of the justices were skeptical that not being able 586 00:35:37,080 --> 00:35:40,960 Speaker 2: to talk to his counsel about his testimony during the 587 00:35:41,000 --> 00:35:44,400 Speaker 2: overnight break violated his constitutional rights. 588 00:35:44,840 --> 00:35:47,920 Speaker 4: Well, I'll tell you. And my suspicion is maybe they 589 00:35:48,080 --> 00:35:50,040 Speaker 4: just want to stay away from the whole thing, because 590 00:35:50,480 --> 00:35:52,960 Speaker 4: I suspect that the truth of the matter is there's 591 00:35:53,000 --> 00:35:56,080 Speaker 4: nobody in that room at night when the lawyer is 592 00:35:56,120 --> 00:36:00,560 Speaker 4: discussing the testimony with the client, and rule is a 593 00:36:00,560 --> 00:36:04,279 Speaker 4: really hard rule to enforce. I suppose you might have 594 00:36:04,560 --> 00:36:07,919 Speaker 4: a lot more appeals in cases from defendants who would 595 00:36:07,920 --> 00:36:11,160 Speaker 4: say I was on the stand and I needed advice 596 00:36:11,480 --> 00:36:14,680 Speaker 4: and the lawyer refused to talk to me, and that's 597 00:36:14,719 --> 00:36:17,880 Speaker 4: why I've been convicted, you know what Philip Reality is saying. 598 00:36:18,400 --> 00:36:21,239 Speaker 4: So it's a touchy subject and it'll be interesting to 599 00:36:21,239 --> 00:36:23,680 Speaker 4: see how the court rules on this thing. Trial lawyers 600 00:36:23,680 --> 00:36:27,640 Speaker 4: across the country will be watching very very carefully because 601 00:36:27,880 --> 00:36:29,760 Speaker 4: there are lots of discuse. It happens to the civil 602 00:36:29,800 --> 00:36:32,600 Speaker 4: cases too, during depositions. You know, you have a civil 603 00:36:32,760 --> 00:36:36,000 Speaker 4: case and the guys being deposed, and then they wanted 604 00:36:36,040 --> 00:36:38,279 Speaker 4: to take a break, and the lawyer says, well, don't 605 00:36:38,280 --> 00:36:40,560 Speaker 4: talk to him during the break. And the lawyer says, well, 606 00:36:40,600 --> 00:36:42,359 Speaker 4: you have no right to restrict what I can say 607 00:36:42,360 --> 00:36:44,920 Speaker 4: to my client during the break. And I've seen fights 608 00:36:44,960 --> 00:36:48,560 Speaker 4: among lawyers, oral arguments among lawyers at depositions about this 609 00:36:48,719 --> 00:36:51,520 Speaker 4: very subject. So this one will spill over into civil 610 00:36:51,560 --> 00:36:54,120 Speaker 4: practice as well. I think if they make a definitive 611 00:36:54,320 --> 00:36:56,120 Speaker 4: ruling on the issue, is. 612 00:36:56,080 --> 00:36:58,359 Speaker 2: There an ethical rule that you shouldn't talk to your 613 00:36:58,400 --> 00:37:00,560 Speaker 2: client during a break into testimony. 614 00:37:01,080 --> 00:37:04,760 Speaker 4: There are no ethical rules about it, other than, of course, 615 00:37:05,120 --> 00:37:09,799 Speaker 4: a lawyer cannot suborn perjury. So if you're giving the 616 00:37:09,920 --> 00:37:13,680 Speaker 4: client advice, you know he's was serving, say self defense 617 00:37:13,840 --> 00:37:16,279 Speaker 4: in a case, and he tells you a story in 618 00:37:16,320 --> 00:37:19,479 Speaker 4: which he's not under threat from the person he killed 619 00:37:19,520 --> 00:37:21,759 Speaker 4: at all, and you say to him, well, you know 620 00:37:21,800 --> 00:37:24,040 Speaker 4: it would help if you thought he was trying to 621 00:37:24,080 --> 00:37:26,560 Speaker 4: strangle you when you pulled out the knife and started 622 00:37:26,719 --> 00:37:30,160 Speaker 4: stabbing him, Well, that would be unethical. You're subborting perjury. 623 00:37:30,200 --> 00:37:32,120 Speaker 4: You're telling him tell a lie to say that you 624 00:37:32,200 --> 00:37:34,640 Speaker 4: were in fear of your life, that's why you killed him. 625 00:37:35,120 --> 00:37:37,560 Speaker 4: So you know, those are the only ethical rules that 626 00:37:37,600 --> 00:37:42,440 Speaker 4: apply in terms of shaping testimony. By saying be more polite, 627 00:37:42,600 --> 00:37:45,160 Speaker 4: you know, you're yelling at the prosecutor. Don't do that. 628 00:37:45,239 --> 00:37:47,640 Speaker 4: It makes you look aggressive and bad. I'm telling you 629 00:37:47,640 --> 00:37:52,319 Speaker 4: about stylistic questions and advice from the attorney. You know, 630 00:37:52,360 --> 00:37:54,360 Speaker 4: I think that's something that all lawyers do to a 631 00:37:54,360 --> 00:37:57,520 Speaker 4: certain extent with clients, and it's probably okay, and matter 632 00:37:57,520 --> 00:37:59,680 Speaker 4: of fact, the courts may like it, because if you 633 00:37:59,680 --> 00:38:01,520 Speaker 4: get a long winded client and won't give you a 634 00:38:01,520 --> 00:38:03,719 Speaker 4: straight answer to a question, a lot of times the 635 00:38:03,800 --> 00:38:06,560 Speaker 4: judges are quite asked as the client listens carefully to 636 00:38:06,640 --> 00:38:10,400 Speaker 4: the question and answers it succinctly, as opposed to wandering 637 00:38:10,480 --> 00:38:13,640 Speaker 4: around and telling all of these lengthy stories, which, by 638 00:38:13,640 --> 00:38:16,840 Speaker 4: the way, just open up new avenues across examination for 639 00:38:16,920 --> 00:38:20,200 Speaker 4: the prosecutor. You know, clients testifying is one of the 640 00:38:20,200 --> 00:38:23,040 Speaker 4: most complex issues of criminal law and always will be. 641 00:38:23,480 --> 00:38:27,280 Speaker 2: And only Justice Katanji Brown Jackson was a criminal defense 642 00:38:27,400 --> 00:38:30,520 Speaker 2: lawyer who might have faced some of these problems with 643 00:38:30,640 --> 00:38:34,680 Speaker 2: a client testifying. She was an assistant public defender in 644 00:38:34,840 --> 00:38:39,000 Speaker 2: DC Justice Sonya so Tomayor is the only other trial 645 00:38:39,080 --> 00:38:41,760 Speaker 2: lawyer on the court, and she was a Manhattan District 646 00:38:41,840 --> 00:38:45,040 Speaker 2: attorney like you, Paul, thanks so much for joining me today. 647 00:38:45,480 --> 00:38:49,440 Speaker 2: That's Paul Callen, former Manhattan prosecutor and criminal defense attorney. 648 00:38:49,800 --> 00:38:52,280 Speaker 2: And that's it for this edition of the Bloomberg Law Show. 649 00:38:52,600 --> 00:38:53,560 Speaker 2: I'm June Grosso.