Speaker 1: This is Bloomberg Law, with June Brussel from Bloomberg Radio.
Speaker 1: The Supreme Court spared Google what could have been a
Speaker 1: multibillion dollar award and allowed tech firms a sigh of
Speaker 1: relief on Monday when it ruled that Google did not
Speaker 1: commit copyright infringement by copying Oracle programming code to develop
Speaker 1: the Android operating system now used on most smartphones. Writing
Speaker 1: for the majority in the landmark decision, Justice Stephen Bryer
Speaker 1: said Google's copying was legitimate fair use, using a recipe
Speaker 1: finding robot as part of an analogy reminiscence of the
Speaker 1: analogies that Justice has had peppered the lawyers with during
Speaker 1: the oral arguments to discern what is copyrightable. Here are
Speaker 1: Justice Briar, Chief Justice John Roberts, and Justice Elena Kagan.
Speaker 1: You didn't have to have a quarty keyboard on typewriters
Speaker 1: at the beginning, But my god, if you let somebody
Speaker 1: have a copyright on that, now they would control all typewriters,
Speaker 1: which really has nothing to do with copyright. Let's say
Speaker 1: you want to open a restaurant. You've got a great
Speaker 1: new chef, he's got great new dishes. Uh, and you say, well,
Speaker 1: we've got to figure out what the men you should
Speaker 1: look like. You know, of course you're going to have,
Speaker 1: you know, appetizers first and entrees and then desserts. You
Speaker 1: shouldn't have to worry about whether that organization is copyrighted.
Speaker 1: Suppose I own a grocery store and I come up
Speaker 1: with a really terrific way of organizing all my fresh produce,
Speaker 1: all my fruits and vegetables into these categories and subcategories,
Speaker 1: very intuitive for the shopper, and um uh, this is
Speaker 1: not the standard way. So it's different from the Chief
Speaker 1: Justices hypothetical in that way, it's novel, uh, and it's
Speaker 1: great joining me is sham Bogan as a professor at
Speaker 1: Columbia Law School. Are people correct in calling this a
Speaker 1: landmark decision? I think absolutely. The way I would put
Speaker 1: it is people have uittually expected it to be the
Speaker 1: copy case of the century. I don't think it's the
Speaker 1: copyright case of the center. It's a copyright case of
Speaker 1: the last half century in the sense that the biggest
Speaker 1: question on copyright ability that the court side steps would
Speaker 1: have entailed it examining such a critical issue and copyrights
Speaker 1: that dates back to the nineteenth century. It did not
Speaker 1: do that, but fair use being so critical to the
Speaker 1: copyright in many ways, breathing license of the copyright system
Speaker 1: has been reinvigorated. So unquestionably it's the landmark. I would
Speaker 1: say it's even more than a landmark. It's probably the
Speaker 1: biggest copyright case and intimitt at least a few decades.
Speaker 1: For those who don't know that much about computer code,
Speaker 1: tell us what the dispute was about. So the case
Speaker 1: basically entailed Google copying what are known as parts of
Speaker 1: applications program interfaces from some Java system or a PIS,
Speaker 1: and and parts of it, not the entire thing. And
Speaker 1: let me explain what API are in very basic terms.
Speaker 1: APIs represented packages of pre written computer code that are
Speaker 1: contained in a Java library, and they're meant to be
Speaker 1: able to be taken off the shelf to be reintegrated
Speaker 1: into another program, so that it saves upware programmers significant
Speaker 1: time and such. And what Google did when it was
Speaker 1: designing its Android platform for smarket phone technology. It decides,
Speaker 1: in order to ensure that programmers who are already similar
Speaker 1: with Java would be able to carry over their skills
Speaker 1: and knowledge based to their new platform. It decides to
Speaker 1: copy a portion of Sun's EPI thirty seven of Sun's
Speaker 1: applications program interfaces, or the pre written packages. It copies
Speaker 1: a portion of them called the declaring code. So let
Speaker 1: me explain the different kinds of code that exists within
Speaker 1: these pre written packages, because the case involves very importantly
Speaker 1: the distinction between these kinds of codes. So, as I said,
Speaker 1: the A p I s are written packages of code,
Speaker 1: but the APIs contained two primary forms of code. According
Speaker 1: to both parties, the first one is referred to as
Speaker 1: declaring code. And the best way to understand the declaring
Speaker 1: code is that it's the code or the part of
Speaker 1: the API that describes the function of the package or
Speaker 1: the task of the package. So these are the lines
Speaker 1: of the code that basically allow someone who's using the
Speaker 1: code or someone who's implementing it later on to know
Speaker 1: what the package is for the best way to understand
Speaker 1: it again in terms of an analogy, and there were
Speaker 1: a lot of analogies thrown out in this case during
Speaker 1: oral argument and in the brief, where that the declaring
Speaker 1: code is something like a header or like an index
Speaker 1: or a glossary that indicates what the package is about. Now,
Speaker 1: very distinct from the declaring code was something called the
Speaker 1: implementing code. The implementing code is the actual functional code
Speaker 1: of the API of the application program interface, which executes
Speaker 1: the task which the package is meant to perform. Right now,
Speaker 1: very very importantly, Google had copied about eleven thousand, five
Speaker 1: lines only of the declaring code from thirty seven of
Speaker 1: these pre written packages or API. Google did not copy
Speaker 1: any of the implementing code that Oracle owns, right, and
Speaker 1: so the entire case revolved around Google's copying of these
Speaker 1: eleven thousand, five hundred lines of declaring code from the
Speaker 1: Java AMPI library that Oracle owned, and obviously Oracle stood
Speaker 1: for copyright infringement, claiming that this was copying not just
Speaker 1: of the codes of the declaring code itself, but also
Speaker 1: the organizational structure, the way in which these headers had
Speaker 1: been organized in the library, something referred to as the structure, sequence,
Speaker 1: and organization of the code of the declaring code had
Speaker 1: also been copied. So the case entirely adjusts just in summary.
Speaker 1: After that long response involved Google's copying of the declaring
Speaker 1: codes from thirty seven pre written packages called APIs that
Speaker 1: were owned by or What were the issues before the court.
Speaker 1: So it's important to understand that when the Court took
Speaker 1: the case, there were two principal issues that were argued.
Speaker 1: The first one was whether the declaring code itself and
Speaker 1: its organizational structure, THEO were copyrightable under copyright rule that
Speaker 1: excludes protection for functional content for functional expression right um.
Speaker 1: And the second issue was whether the copying by Google,
Speaker 1: even assuming it was copyrightable content, would constitute sit The
Speaker 1: court duct the first question and moved to the second one,
Speaker 1: saying if we want to resolve it because the first
Speaker 1: question would be a little too technological intensive, technologically intensive,
Speaker 1: and and it answered the second question by saying that
Speaker 1: let's look at the nature of the code. So what
Speaker 1: the court does is it takes the four fair use
Speaker 1: factors that are codified in the Statutes of copyright statute.
Speaker 1: But what are the interesting things that Justice Brier does
Speaker 1: in the majority opinion is he sort of expands and
Speaker 1: reinterpret these factors in a way that makes them applicable
Speaker 1: to computer software. So he says, so, for instance, the
Speaker 1: first factor that he uses is a factors that hasn't
Speaker 1: been used extensively in the prior juristudents, a factor known
Speaker 1: as the nature of the copyrighted work. Most courts have
Speaker 1: said it's probably the least important factor in the overall
Speaker 1: fair use analysis. Justice Brier says, actually, for computer software,
Speaker 1: it is perhaps one of the, if not the most
Speaker 1: important factors, and it allows us to sift between the
Speaker 1: types of computer code that are an issue in a
Speaker 1: software So, now, why did the court find that Google's
Speaker 1: use of that code was fair use? Writing forward, the majority,
Speaker 1: Justice Brier focuses on I would say a couple of
Speaker 1: the fair use factors more than the others to find
Speaker 1: that it stay use. Here, the most important thing to
Speaker 1: note is that he takes the statutory factors and he
Speaker 1: modifies them for the context of computer software. So what's
Speaker 1: very important is how he adapts their use for computer software.
Speaker 1: So to illustrate, there's through the factors that he relies
Speaker 1: on an important say use factor. The second factor in
Speaker 1: the statute is something called the nature of the copyrighted work.
Speaker 1: Briar spends a lot of time on this factor, showing
Speaker 1: how it can be used to differentiate between different forms
Speaker 1: of computer code. And he says, well, because we're dealing
Speaker 1: with this declaring code which has this function like a
Speaker 1: header or an index and not the implementing code. We
Speaker 1: have to approach it differently. And because it's functional code
Speaker 1: of this declaring time, uh, it isn't really to be
Speaker 1: given as much protection as the implementing code because Google
Speaker 1: didn't copy the implementing code. So that factor, he finds
Speaker 1: very importantly allows him to recognize that what Google did
Speaker 1: could constitute a stronger case for fair use under the
Speaker 1: factor because the nature of what it copied wasn't core
Speaker 1: or central the copyists. Another important factor, and perhaps one
Speaker 1: of the most important and his analysis, is this conclusion
Speaker 1: that what Google did is was engaging in a form
Speaker 1: of what it's called interoperability, trying to allow software programmers
Speaker 1: to use their knowledge and awareness of the Java platform
Speaker 1: in developing the Android apps and the Android framework so
Speaker 1: that it could be compatible back with Java. This interoperability,
Speaker 1: he basically says, this is the copying a new purpose,
Speaker 1: and this new purpose was something that he weighs very
Speaker 1: heavily to say that it could constitute a transformative used,
Speaker 1: a transformative used under the fair use analysis. And this
Speaker 1: again he weighs very heavily in favor of Google. And
Speaker 1: the last thing of the other I think the most
Speaker 1: important factor that he relies on is to say, let's
Speaker 1: just not focus on the commercial harm that Oracle suffered,
Speaker 1: but let's really focus on the public benefit as well
Speaker 1: from Google's actions. Let's look at how the interoperability and
Speaker 1: the development of a new platform expands public benefits. And
Speaker 1: therefore he says the economic harm should be weighed against
Speaker 1: the benefits. And this favor is Google as well. So
Speaker 1: I think these three factors are the most important in
Speaker 1: his analysis, and that's why he's finds there to be there.
Speaker 1: But I think the key point really more than anything else,
Speaker 1: that he expands each of these factors and tailored for
Speaker 1: computer software in a new and interesting ways. Let's talk
Speaker 1: about the descent written by Clarence Thomas, because he said
Speaker 1: that this wasn't fair use Google erased five percent of
Speaker 1: the value of oracles partnership with Amazon. And he also
Speaker 1: criticizes the fact that the court didn't decide whether or
Speaker 1: not this code was copyrightable. So what do you think
Speaker 1: of his descent? So Justice Thomas's descent very interestingly, um,
Speaker 1: it's very close to what when many people expected after
Speaker 1: oral argument would be the court majority position in the
Speaker 1: oral argument, most of the justices were asking the lawyer's
Speaker 1: questions about copyright ability and how they could reconcile, especially
Speaker 1: Google lawyer, how the Google could reconcile its position with
Speaker 1: the text of the statute, which says that computer code
Speaker 1: is copyrightable and it doesn't draw a distinction between different
Speaker 1: forms of computer code. Justice Thomas really builds on that
Speaker 1: in his dissenting opinion, saying, look, the Court basically side
Speaker 1: steps critical question of whether declaring code is copyrightable at
Speaker 1: all and reintroduces this copyright ability or the extent of
Speaker 1: copyright protection analysis into fair youth. And he sees that
Speaker 1: as circumventing congresses policy in the statute. Right. So, in
Speaker 1: his view, if you look at the text of the statue,
Speaker 1: there is no distinction between declaring code and implementing code.
Speaker 1: And what the Court is doing, in his view, is
Speaker 1: introducing an artificial distinction that runs counter to congressional policy
Speaker 1: and very importantly runs counter to the text of the statute. Right.
Speaker 1: And that's Justice Thomas's view, And so he first falls
Speaker 1: supports the side stepping this question because he's acutely aware
Speaker 1: of the fact that the majority is reintroducing this analysis
Speaker 1: under the rubric of the nature of the copyrighted work
Speaker 1: in Fair You. But even on the majority's own terms,
Speaker 1: Justice Thomas recognizes that the majority is expanding the domain
Speaker 1: of fair use of every one of these factors. So
Speaker 1: to go back to what you indicated his discussion of
Speaker 1: the value of oracles that was emustrated, He says, well,
Speaker 1: this is an astoundingly new expansion of the concept of
Speaker 1: market harms in the fourth fair use factor. Where we've
Speaker 1: examined what kind of harm the copyright owner suffers in
Speaker 1: the existing market or in future markets, We've never really
Speaker 1: examined public benefits. The statute doesn't talk about the public benefits.
Speaker 1: The statute doesn't talk about cost benefit analysis that focus
Speaker 1: on the harm to the existing our potential value of
Speaker 1: the work. And so that's why he falls the majority
Speaker 1: for expanding each of the fair Youth factors in a
Speaker 1: way that doesn't too closely to the text. I think
Speaker 1: this was not unexpected um Justice Thomas in many ways
Speaker 1: of channeling his textualism and the need for the Court
Speaker 1: to be aware of its appropriate role in the copyright
Speaker 1: system to the text and to not second guest Congresses
Speaker 1: policy decisions that are apparent in the text and what
Speaker 1: he sees the majority doing is violating that rule. But
Speaker 1: in defense of the majority's opinions, by pushing everything into
Speaker 1: fair you, fair used has been recognized as this domain
Speaker 1: where judges have significant freedom. Fair use is effectively a
Speaker 1: judge made job friend that is in the statue today,
Speaker 1: but Congress wanted courts to continue to develop it. So
Speaker 1: Justice Bryer, by pushing all of these decisions or all
Speaker 1: of these elements and expansions into fair youth has in
Speaker 1: many ways a perfect response to Justice Thomas's textualism, basically
Speaker 1: by saying, well, fair use is not a textualist doctrine.
Speaker 1: Fair use is a doctrine that is judged made. And
Speaker 1: so does this decision then expand the idea of fair
Speaker 1: use in computer software? Oh? I think it absolutely does.
Speaker 1: I think there are three ways in which it does.
Speaker 1: There's a there's a short term inplication, there's a medium
Speaker 1: term implication, and then there's a long term implication that
Speaker 1: goes beyond computer software. I think the first thing in
Speaker 1: the short term is it reinforces the idea that fair
Speaker 1: use protected borrowing. In the context of computer software, that
Speaker 1: interoperability writes the compatibility between developing technologies and older ones
Speaker 1: is an important value that should be factored into the
Speaker 1: fair use and out that had already been nascent in
Speaker 1: some prior case law. But the Supreme Court reaffirms that.
Speaker 1: I think it's important and very importantly. If it's significant enough,
Speaker 1: it constitutes a transformative use. So I think it makes
Speaker 1: that that short term expansion to the reaffirmation. But I
Speaker 1: think what it also does, and this is the second
Speaker 1: point um in the medium term by by saying that
Speaker 1: there's one particular factor in the fair use analysis that
Speaker 1: is particularly appropriate for computer software, namely the factor called
Speaker 1: the nature of the copyrighted work. Um, it allows courts
Speaker 1: in the future to be able to examine types of
Speaker 1: computer software that are being litigated for copyright infringements. So
Speaker 1: IFACT think that's the medium term is the implication is
Speaker 1: that fair use is going to be the next frontier
Speaker 1: of litigation for computer software types of code, classifications between
Speaker 1: them and the extent to which some of them are
Speaker 1: more purely functional as opposed to implementation of the program
Speaker 1: uh is something that we're going to start seeing courts
Speaker 1: do under the rubries of the fair use analysis. And
Speaker 1: and then the last thing is In the long term,
Speaker 1: I think the implications of the courts fair use decisions
Speaker 1: go well beyond computer software. UM. I think the signals
Speaker 1: adjustice rier in the majority sent for the interpretation of
Speaker 1: fair use. In the long term, we're going to see
Speaker 1: carry over beyond computer software and and liberate the doctrine
Speaker 1: from the text of the statute. UM say that most
Speaker 1: of it can be decided by a judge. You don't
Speaker 1: have to rely on a jury. And that fair used,
Speaker 1: very importantly is a way of determining the scope of
Speaker 1: the work, the scope of protection and a work. UM.
Speaker 1: So I think fair use very much as front and
Speaker 1: center and and has been given a new invigorated growth.
Speaker 1: So then does this decision settle questions for tech companies
Speaker 1: or does it open more questions and more litigation about
Speaker 1: fair use. I think it settles some right now in
Speaker 1: the short term, and it opens up more litigation for
Speaker 1: fair use in different ways. And let me explain why.
Speaker 1: I think the core side. Stepping the question of copyright
Speaker 1: ability in the abstract for computer software allows tech companies
Speaker 1: to continue to develop and work under the assumption that
Speaker 1: computer software obtains protection under the copyright statute with out
Speaker 1: any problems. I think one of the big concerns that
Speaker 1: some had voice, certainly some a making head voice, was
Speaker 1: that the court could question the entire availability of copyright
Speaker 1: for computer SEF. But of course there is no such things.
Speaker 1: So I think in that sense the status quo is preserved,
Speaker 1: at least for now. But insofar as fair use is
Speaker 1: going to become the next battleground, let's not forget that
Speaker 1: fair use is a very fact intensive determination. Fair use
Speaker 1: is not how the determination that happens completely in the abstract.
Speaker 1: It's case by case. It's based on a factual record,
Speaker 1: and it involves a determination of what the borrowing entails,
Speaker 1: or how much was taken, and what its impact was.
Speaker 1: I don't think that in the abstract is going to
Speaker 1: cause any problems, but to the extent that there is
Speaker 1: significant borrowing of this kind that entails interoperability, I do
Speaker 1: believe that fair use is something that parties will start
Speaker 1: thinking about as the next battle ground if they're willing
Speaker 1: to jump into litigation. Right fair use is cost intens
Speaker 1: it involves litigation. It's not something that can be determined
Speaker 1: in the abstract, given how fact intense of it is.
Speaker 1: So in short, I think the tech companies don't have
Speaker 1: too much to worry about. In many ways, it reaffirms
Speaker 1: the practice of existing borrowing, and it it recognizes the
Speaker 1: value of interoperability and computer programming. But um, and that's
Speaker 1: primarily because the court does not resolve the question of
Speaker 1: copyright ability, which it leads for another day. Thanks for
Speaker 1: being in the Bloomberg Law Show. That's Professor Shambaganesh of
Speaker 1: Columbia Law School. It was day done. At the murder
Speaker 1: trial of former Minneapolis police officer Derek Chauvin in the
Speaker 1: death of George Floyd. Chauvin's defense attorney has been arguing
Speaker 1: that Floyd's death was caused by drugs, heart problems, and
Speaker 1: other health ailments, not by Chauvin's knee on his neck. Today,
Speaker 1: Dr Martin Tobin, a lung and critical care specialist who
Speaker 1: is also well versed in fentanel deaths, took the stand
Speaker 1: and refuted that defense. Here's Prosecutor Jerry Blackwell questioning Dr Tobin,
Speaker 1: do any of those conditions have anything to do with
Speaker 1: the cause of Mr Foyd's death in your professional opinion? Whatsoever? None, whatsoever?
Speaker 1: And again, what was the cause? Us? That those conditions
Speaker 1: don't matter? The cause of death is a low level
Speaker 1: of oxygen. Joining me is Richard Frays, a professor at
Speaker 1: the University of Minnesota Law School. Has the prosecution built
Speaker 1: an overwhelming case so far? Would you say? Well? No,
Speaker 1: Although if you ever watch a trial, it's always amazing
Speaker 1: how convincing the prosecution case seems when it's only subject
Speaker 1: to cross examination, and then when the other side gets
Speaker 1: up and start to poke holes and produce its own experts,
Speaker 1: then you can turn around and say, Wow, it's not
Speaker 1: a strong prosecution case at all, And you know what
Speaker 1: should I think? So we're gonna have to wait and
Speaker 1: see what the defense case looks like. But I would
Speaker 1: say that the prosecution has has done a very good
Speaker 1: job of laying out its key themes, anticipating even before
Speaker 1: they cross examination, anticipating where the defense is going to
Speaker 1: attack most forcefully. So, particularly on the issues of causation
Speaker 1: of deaths by Derek Chauvin and justified use of force.
Speaker 1: I think they've made as strong a case as they can.
Speaker 1: We'll have to see if the defense can come back.
Speaker 1: I think the use of force, I have never heard
Speaker 1: of a police killing a prosecution. There aren't that many
Speaker 1: of them. I've never heard of one that had so
Speaker 1: many police officers testifying against the police officer that's on trial.
Speaker 1: You keep hearing that the blue wall has crumbled. Is
Speaker 1: that particularly effective for the jury to have police officers
Speaker 1: within his own former police department, the police chief, testifying
Speaker 1: against him. I would think so. I don't know how
Speaker 1: the other than the kind of questions that we've seen
Speaker 1: a cross examination pointing out, well, how long has event
Speaker 1: since you arrested somebody? Did you ever arrest anybody? Do
Speaker 1: you do you understand that officers have discretion and have
Speaker 1: to make decisions on the street. Yes, yes, yes, the
Speaker 1: witnesses say, so, you know, we know that the defense
Speaker 1: has has tried to limit the damage that's been done.
Speaker 1: They may at some point, just as the defense is
Speaker 1: essentially trying to blame the victim because he used drugs,
Speaker 1: they will also perhaps try to point the finger at
Speaker 1: the police department and say, all of these people are
Speaker 1: just trying to shift blame to this poor officers Chauvin.
Speaker 1: They may try that type me but I think I
Speaker 1: think I'm guessing that the jurors will be impressed by
Speaker 1: the police testimony against Chauvin. Yesterday, video was played and
Speaker 1: the question was whether George Floyd said I ate too
Speaker 1: many drugs versus I ain't do no drugs. And some
Speaker 1: of the reporters said that the jury started to perk
Speaker 1: up during this where they had been you know, they've
Speaker 1: been in trance during the testimony of the eyewitnesses, but
Speaker 1: not so much during the use of force experts. But
Speaker 1: here they started to listen carefully to these particular words.
Speaker 1: Make a difference because the prosecution has admitted that Floyd
Speaker 1: did drugs. Yeah, and I I thought that was a
Speaker 1: bit of a tempest in a teapot, because even if
Speaker 1: he said I too many drugs, and even if Chauvin
Speaker 1: heard that comment, that's just another red flag. This is
Speaker 1: somebody who may be in serious medical distress and you
Speaker 1: need to be careful that you don't push them over
Speaker 1: the edge. So I think it cuts both ways. And
Speaker 1: I can imagine the jurors probably thought, well, our job
Speaker 1: is to is to decide the fact. Here is a
Speaker 1: contested factual issue. We have ears, so we can decide
Speaker 1: ourself what he said. So it doesn't surprise me that
Speaker 1: they perked up. There was testimony about the pills found
Speaker 1: in Floyd's car, as well as the police car. Is
Speaker 1: that something the prosecution introduced in order to take the
Speaker 1: bite out of the defense introducing it? Yes, that's a standard,
Speaker 1: a standard move in litigation. If you know something bad
Speaker 1: is going to come out, introduce it yourself, above all
Speaker 1: to show you're not hiding anything, but also to put
Speaker 1: characterize it in a certain way that if you wait
Speaker 1: until the other side presents it, they're gonna characterize it
Speaker 1: their way, and that would be the first time the
Speaker 1: jury hears it. The first impressions are important. So it's
Speaker 1: absolutely standard for one side to to present damaging information
Speaker 1: that they know the other side is going to want
Speaker 1: to introduce anyway. In a normal case, you wouldn't have
Speaker 1: the video that you have here, video from different angle.
Speaker 1: So I'm wondering how much experts testifying about the use
Speaker 1: of force matters in a case where you have the
Speaker 1: video and you see what was being done. Well, I
Speaker 1: guess I say two things about that. One is the
Speaker 1: the experts can can address the very important question of
Speaker 1: whether this was unreasonable force for a police officer in
Speaker 1: that situation, so the jury can see what's happening. The
Speaker 1: jury doesn't know, uh from a police perspective and police
Speaker 1: good police policy was this okay, So that's what you
Speaker 1: need the experts for. And the video, even though the
Speaker 1: jury can see it, it's very important that the experts
Speaker 1: can see it because then they can't be dismissed as well.
Speaker 1: You're talking in abstractions. You weren't there. Uh, we were
Speaker 1: all there, and then the experts can look at it
Speaker 1: as if they were there and say, I, I know
Speaker 1: what was happening there. I'm not talking in general terms,
Speaker 1: the defense said in its opening statement, and is pushing
Speaker 1: the the idea that the officers at the scene were
Speaker 1: distracted by this hostile crowd. Has there been any momentum
Speaker 1: for that defense? Well, it is. Yeah. It's one of
Speaker 1: the themes that the defense keeps bringing up, and I'm
Speaker 1: sure we'll continue to bring up if for no other
Speaker 1: reason than just to uh generate, in another way, some
Speaker 1: sympathy for the defendant who uh Otherwise, just to judge
Speaker 1: by the cell phone video, which doesn't show much of
Speaker 1: the crowd, uh, there isn't much sympathy for the defendant,
Speaker 1: especially since the crowd is, if anything, raising red flags
Speaker 1: and warning the chauvin that what you're doing is dangerous.
Speaker 1: So the the um the defense wants to to suggest
Speaker 1: that that Chovin and the other officers were distracted from
Speaker 1: Floyd and Floyd's condition by this angry crowd UH and
Speaker 1: the jury. We'll have to see if how the jury
Speaker 1: takes that. But I guess they're the expert testimony address
Speaker 1: that too, I believe and said, well, it doesn't appear
Speaker 1: that the officers were ever in any danger or that
Speaker 1: the crowd was ever showing any serious interest in intervening.
Speaker 1: And again, what's good policing. What does a a well
Speaker 1: trained and conscientious police officer do in a situation like that.
Speaker 1: They don't let themselves get distracted by the crowd. I've
Speaker 1: heard time and again that this is going to come
Speaker 1: down to the cause of death and a battle of
Speaker 1: the experts. Do you agree with that? Well, it is
Speaker 1: ours of death is an essential element of all three
Speaker 1: homicide charges, so it is the as is justified force,
Speaker 1: so that those are those are the issues the defense
Speaker 1: has to keep hammering on at least raise a reasonable
Speaker 1: doubt for UH causation or and or a reasonable doubt
Speaker 1: unjustified force. I don't think it's just a battle of
Speaker 1: the experts. I think the way the prosecution has has
Speaker 1: laid this out, uh, sort of builds to the experts,
Speaker 1: but doesn't rely on them totally uh for cause of death.
Speaker 1: So you have the initially a large number of people
Speaker 1: who just saw the video or there on the scene
Speaker 1: uh and were shocked and and and uh disturbed by
Speaker 1: what they thought what appeared to be excessive force. Uh.
Speaker 1: And then you have the the use of force testimony. H.
Speaker 1: A lot of that was essentially saying you didn't need
Speaker 1: to continue using this level of force. Your force was
Speaker 1: becoming increasingly less necessary minute by minute and increasingly more dangerous.
Speaker 1: These procedures can kill somebody. Well, that leads right into
Speaker 1: the causation argument. Yes, the procedures are dangerous and they
Speaker 1: can kill somebody, and in fact somebody did die. So
Speaker 1: that tends to support the idea that it wasn't just
Speaker 1: a coincidence that Mr. Floyd died at that moment, It
Speaker 1: was because of the stresses that the officers were placing
Speaker 1: on him, meant physically and mentally. I taken though, that
Speaker 1: the defense is going to have experts that say he
Speaker 1: died because of the drugs in his system. Yes, and
Speaker 1: that's that's a possibility. Again, I think the prosecution will say,
Speaker 1: all we have to prove is that the officer's actions
Speaker 1: were a substantial causal factor, not the only causal factor. Uh.
Speaker 1: And if there are pre existing conditions that make the
Speaker 1: victim more vulnerable, will you take your victim as you
Speaker 1: find them is a legal expression. Uh. And even if
Speaker 1: there these are conditions that aren't known to the defendant,
Speaker 1: the defendant's action uh, in the in the state's view,
Speaker 1: pushed the victim over the line into death. Uh. And
Speaker 1: again the prosecution will argue, it's not It's not likely
Speaker 1: that Floyd happened to die just at that moment from
Speaker 1: these pre existing conditions. I wanted to give your reaction
Speaker 1: to the testimony of Floyd's girlfriend, who was called under
Speaker 1: a legal doctrine in Minnesota called spark of life. I
Speaker 1: hadn't heard about that before. Yeah, And I'm I I
Speaker 1: have no expertise on that, and I'm not sure i'd
Speaker 1: ever even heard about it before. It As a general matter,
Speaker 1: you would think that each side wants to humanize their
Speaker 1: their client or their their particular uh person of intra.
Speaker 1: So the defense usually wants to humanize the defendant. He's
Speaker 1: not a monster. You know, he has a family, there
Speaker 1: are people who care about him, and in this case,
Speaker 1: the client of the prosecution in a way is George Floyd.
Speaker 1: Also the public, of course, so they want to to
Speaker 1: show that this isn't just just one more criminal being arrested. Uh.
Speaker 1: This this is somebody who had a life, had ups
Speaker 1: and downs, including drug use. But it is Uh. It
Speaker 1: is a way to to to get past sort of
Speaker 1: abstractions and say no, this is this is or was
Speaker 1: a living, breathing human being whose life was was lost.
Speaker 1: I am a little surprised to hear. Again, I have
Speaker 1: no expertise. I was a little surprised to hear that
Speaker 1: this isn't commonly as far as what's happening in the courtroom,
Speaker 1: you have prosecutors, these shifting prosecutors doing the questioning and
Speaker 1: the opening statements, and on the other side you have,
Speaker 1: at least in the courtroom the one defense attorney and
Speaker 1: his legal assistant. Does that have any impact on the
Speaker 1: jury in that either you think that this defendant is
Speaker 1: overwhelmed by the prosecution's team or the jury is not
Speaker 1: able to connect with any one prosecutor. I'm sure the
Speaker 1: defense will will try to suggest that or argue that,
Speaker 1: you know, I don't have this huge team of lawyers
Speaker 1: that the other side has. Mr Chauvin has his me.
Speaker 1: I'm sure that they'll they'll try and use that, but um,
Speaker 1: I don't. I don't know that I will be effective
Speaker 1: or not. The publicity before is one thing, But the
Speaker 1: publicity during the trial and the fact that you have
Speaker 1: protesters outside every day that the jury has to go past,
Speaker 1: I'm wondering if that might have an effect or might
Speaker 1: be after trial if he's convicted an appeal issue. Sure, well,
Speaker 1: there is obviously a great concern of the trial judge
Speaker 1: is well aware of and the prosecution is well aware
Speaker 1: of that. There there we have to give Mr Chauvin
Speaker 1: a fair trial. We all want that so that if
Speaker 1: he's convicted. Uh No, one says, well, it was a
Speaker 1: show trial, it was rigged trial. Um so we we
Speaker 1: we don't want a conviction that where the jury felt pressured.
Speaker 1: I believe that the jury is not only their identity
Speaker 1: is being kept secret for now, but I believe they're
Speaker 1: coming and going in a way that they don't see
Speaker 1: much of the crowds. But we'll have to see if
Speaker 1: there's a conviction, and then some juror speaks out that
Speaker 1: would add strength to a defense appeal that the jury
Speaker 1: was tainted. Finally, it aims as if it would have
Speaker 1: avoided some appella issues if the judge had moved the
Speaker 1: trial out of Minneapolis. Well, but as the judge said,
Speaker 1: where are you going to move it to? This this
Speaker 1: case has such wide publicity, uh, not just in Minneapolis,
Speaker 1: but around the country and around the world. It would
Speaker 1: be difficult to find another court in Minnesota that wouldn't
Speaker 1: have many of the same problems and would probably have
Speaker 1: less court security. And of course, the the logistics of
Speaker 1: holding a trial outside of Minneapolis for all the attorneys
Speaker 1: and the witnesses are much much greater. So it's it's
Speaker 1: not surprising to me. It's a hard, hard decision. I'm
Speaker 1: sure the defense will appeal on that ground, but judges,
Speaker 1: judges have substantial discretion and deciding whether all things taken
Speaker 1: into account, whether the raile needs to be moved somewhere else,
Speaker 1: and I'm pretty sure that on that issue, the trial
Speaker 1: judge will be upheld. Thanks for being on the show.
Speaker 1: That's Professor Richard Phrase at the University of Minnesota Law
Speaker 1: School and that's it for the edition of the Bloomberg
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Speaker 1: Bloomberg Law Show every week now at ten pm Eastern
Speaker 1: right here on Bloomberg Radio. Pisoda Law School about the
Speaker 1: trial