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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash podcasts. Federal prosecutors are

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Speaker 1: seeking the death penalty for Robert Bowers, the man charged

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Speaker 1: with going on an anti Semitics shooting spree at a

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Speaker 1: Pittsburgh synagogue on Saturday, killing eleven people. U S Attorney

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Speaker 1: Scott Brady says Bowers will be in court today to

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Speaker 1: appear before a federal magistrate judge. Ours was armed with

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Speaker 1: multiple weapons. He had three Glock three seven handguns and

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Speaker 1: an a R fifteen assault rifle. Inside the synagogue, Bowers

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Speaker 1: shot and killed eleven individuals and wounded to others. Joining

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Speaker 1: me is Brad Moss of Mark said Brad. Federal prosecutors

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Speaker 1: have filed twenty nine charges against Bowers, and that includes

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Speaker 1: nineteen counts of too hate crimes, obstruction of exercise of

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Speaker 1: religious beliefs resulting in death, and resulting in bodily injury

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Speaker 1: to a public safety officer. Tell us about the federal

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Speaker 1: Civil rights laws against hate crimes in the context of

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Speaker 1: the charges here. Sure, So the context the way the

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Speaker 1: Congress crafted these specific federal criminal provisions is it allows

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Speaker 1: uh the prosecutors to take what would otherwise be in

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Speaker 1: the estate crime of local domestic crime of you know,

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Speaker 1: committee of murder, and bring it to a federal level

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Speaker 1: under the federal legal system, and adding an additional element

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Speaker 1: of proof that the government has a demonstrate that it

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Speaker 1: was done for the particular and specific purpose of hate crime,

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Speaker 1: of doing it not just because you didn't like the person,

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Speaker 1: but because you particularly hated their race, their ethnicity, their religion,

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Speaker 1: something along those lines. So it it adds additional factual

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Speaker 1: burden for prosecutors, of course, But by cre eating this

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Speaker 1: criminal provision, what Congress did was it gave the federal

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Speaker 1: prosecutors the ability to bring these crimes and to keep

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Speaker 1: it separate from what state laws might otherwise craft when

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Speaker 1: it comes to limits on the death penalty. And that's

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Speaker 1: why obviously it appears that the federal prosecutors are going

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Speaker 1: to seek the death penalty from Mr. Bowers, even though

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Speaker 1: under certain state laws he might otherwise not have been

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Speaker 1: subject to it because of moratoriums. So the ultimate panel.

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Speaker 1: The ultimate decision for seeking the death penalty rest with U. S.

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Speaker 1: Attorney General Jeff Sessions. And there's a process within the

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Speaker 1: federal system. Would you explain the process what prosecutors are

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Speaker 1: going through now, what's being considered. Sure, so they'll consider

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Speaker 1: a number of factors. They'll consider the nature of the

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Speaker 1: crime obviously, and the evidence they have of it being

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Speaker 1: specifically done for the purpose of murdering people based on

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Speaker 1: their religion, on ethnicity, things along those lines. But they

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Speaker 1: also don't have to factor in and consider the entire

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Speaker 1: to their analysis. The person's background is mental health, um,

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Speaker 1: the interest of public policy, things along those lines. Because

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Speaker 1: in the end, even if you know they succeed at

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Speaker 1: trial and he's convicted on these accounts, there's a sect,

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Speaker 1: there's a separate penalty stage, and this is what the government.

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Speaker 1: Prosecutors will then have to convince the jury not just

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Speaker 1: that he was guilty, which they would have already concluded

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Speaker 1: of these various counts, but that the nature of the

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Speaker 1: offense and the factual circumstances of these murders justifies the

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Speaker 1: ultimate punishment justifies and putting this person to death. And

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Speaker 1: it's a very significant factual burden that the prosecutors understandably

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Speaker 1: have to meet in order to impose that type of

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Speaker 1: ultimate punishment. Brad, would you be surprised if federal prosecutors

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Speaker 1: do not seek the death penalty here? I would be

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Speaker 1: completely shocked if they don't pursue it. Not only is

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Speaker 1: uh the Attorney General seems to me very much leaning

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Speaker 1: towards that, not only does the President seem to be

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Speaker 1: leaning towards that, um, but I think the circumstances certainly

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Speaker 1: demonstrate that the government could meet its factual burden. There

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Speaker 1: certainly seems to be enough then from this gentleman's social

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Speaker 1: media posts and his comments contemporaneously to police officers when

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Speaker 1: he was detained, that this was specifically done as a

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Speaker 1: hate crime. Not just ay, I'm randomly walking around to

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Speaker 1: a particular building today to murder people. But he was

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Speaker 1: specifically and intentionally doing it because these individuals were Jewish

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Speaker 1: and that was his particular focus. So I would be

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Speaker 1: shocked if they don't pursue the death penalty. And I

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Speaker 1: think it's a pretty decent bet that, assuming this gentleman

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Speaker 1: is convicted, that ultimately the jury would authorize the death

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Speaker 1: penalty and the penalty stage. Republican Senator Marco Rubio tweeted,

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Speaker 1: why is it so hard to accept that a clearly

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Speaker 1: deranged band carried out deranged acts is insanity? A defense

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Speaker 1: that seems likely here, though it's rarely successful. I mean, certainly,

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Speaker 1: if the if Mr Bowers wants to challenge this, and

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Speaker 1: I have no idea what his discussions with his legal

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Speaker 1: council like right now, that would certainly be a path

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Speaker 1: I would pursue, but I would be surprised the psychological

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Speaker 1: evaluations that would come out of that, which would be uh,

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Speaker 1: certainly a part of any potential defense of insanity, would

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Speaker 1: reject the idea that he didn't recognize right from wrong

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Speaker 1: at the time. There's no history of mental illness that

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Speaker 1: we identify here other than being apparently a rabbit, racist

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Speaker 1: and bigot. Uh So, simply being bigot, it doesn't make

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Speaker 1: you and mentally ill. It just means you're bigoted. So

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Speaker 1: in that context, I don't think there's an insanity or

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Speaker 1: mental health defense. And I think what the senator was

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Speaker 1: referencing in particular was this debate that we're having, this

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Speaker 1: societal discussion about whether the president's rhetoric is part of

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Speaker 1: the problem here. I think that's going to be showing

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Speaker 1: up as well in the mid terms in a week. Well.

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Speaker 1: The president's tweets um this morning were about the media

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Speaker 1: being responsible, the press was the enemy of the people again,

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Speaker 1: but he did issue a strong statement of outrage at

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Speaker 1: the shooting as an act of anti Semitism on Saturday afternoon.

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Speaker 1: My question is we see in his tweets and statements

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Speaker 1: become part of many civil cases. Would they be part

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Speaker 1: of a criminal defense in either this case or the

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Speaker 1: case of the Florida man who's charged in connection with

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Speaker 1: mailing pipe bombs to high profile Democrats, including former President

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Speaker 1: Barack Obama. Um. I mean it certainly would be in

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Speaker 1: an innovative and inventive legal defense if they tried to

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Speaker 1: argue that. If the criminal defense lawyers try to argue

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Speaker 1: justification and saying that the basis for these actions was

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Speaker 1: reliant upon the statements from the president, I don't think

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Speaker 1: that argument would really fly. You know, people have tried

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Speaker 1: that before, saying oh I did this because of what

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Speaker 1: this politician said. It's usually just way too attenuate it.

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Speaker 1: I think the President's exposure here and liability is more

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Speaker 1: political than it would be any kind of legal aspect.

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Speaker 1: He has a hip habit of issuing the proper statement

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Speaker 1: what you're supposed to be as the moral leader of

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Speaker 1: the country, and then on Twitter in various tweets explaining

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Speaker 1: what he really thinks through these various commentary, in the

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Speaker 1: various hyperbolic rhetoric. That is a problem for the president

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Speaker 1: going forward from a political standpoint. We don't know how

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Speaker 1: this is going to play out in the election. We

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Speaker 1: don't know how it's gonna play out. But I think

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Speaker 1: we're going to see how this how the country is

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Speaker 1: a society really views this type of rhetoric, and if

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Speaker 1: they think this is what they want to have going forward.

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Speaker 1: President Trump also said that the country should quote stiffen

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Speaker 1: up our laws with guns with the death penalty. What

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Speaker 1: kind of of law, What kind of change in law

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Speaker 1: is he looking for? Yeah, So in the nineties, in

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Speaker 1: the mid nineties and six, Congress passed a law and

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Speaker 1: I'm blanking on the particular full context of anything, was

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Speaker 1: called the A E. D. P. A is the acronym,

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Speaker 1: but it was designed to short circuit and kind of

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Speaker 1: you know, streamline the appealed process when people are convicted

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Speaker 1: of a crime. And ultimately sentenced in the penalty stage

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Speaker 1: to death. There's a link the appeals proces. I can

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Speaker 1: take years upon years for it to go through the processes.

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Speaker 1: The Congress tried to streamline it a bit in the nineties,

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Speaker 1: and they did so to when a stent. There were

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Speaker 1: remains debates about whether or not that really cut off

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Speaker 1: people's certain legal avenues for appeal, But that seems to

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Speaker 1: be with the President his references. He wants to limit

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Speaker 1: the ability of these individuals convicted of these crimes. Thank you,

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Speaker 1: you have to leave it there. Brad will pick it

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Speaker 1: up again, I'm sure as this process continues. That's Brad

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Speaker 1: Mass of Mark z. At an event at Princeton Law

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Speaker 1: School earlier this month, Supreme Court Justice Elena Kagan spoke

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Speaker 1: about the confirmation of Brett Kavanaugh and shared her thoughts

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Speaker 1: about the importance of a centrist swing vote on the Court.

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Speaker 1: In the last really thirty years, starting with Justice O'Connor

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Speaker 1: and and continuing with Justice Kennedy, there has been a

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Speaker 1: person who people who found the center. It seems likely

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Speaker 1: that that centrist vote will be missing on the court

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Speaker 1: where Kavanaugh has taken Kennedy's place. Joining me is Greg Stoor,

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Speaker 1: Bloomberg News Supreme Court reporter, Greg, How certain is it

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Speaker 1: that the Court will shift to the right. It's pretty

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Speaker 1: darn certain, June. Obviously, we haven't seen Justice Kavanaugh vote

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Speaker 1: in any any cases yet. Um, there's always the very

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Speaker 1: small possibility of a surprise. But Um, Republicans, including this

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Speaker 1: White House, have gotten good at appointing the type of

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Speaker 1: justices who are generally gonna vote the way that they want,

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Speaker 1: which means that Justice Kavanaugh will be more conservative than

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Speaker 1: Justice Kennedy was. And as you alluded to at the beginning,

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Speaker 1: Chief Justice John Roberts will decide how far the court goes.

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Speaker 1: So some legal scholars are saying that Roberts will now

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Speaker 1: be at the center of the court. And he has

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Speaker 1: shown time and again that he's concerned about the perception

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Speaker 1: of the court as partisan. But his votes have been

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Speaker 1: consistently conservative with a few exceptions. Is he the center now?

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Speaker 1: He is certainly the center in that sense. Um, Uh

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Speaker 1: that that he will is the one who will be

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Speaker 1: providing a fifth vote for something very frequently. But he's

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Speaker 1: but as Justice Kagan was suggesting in those remarks, he's

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Speaker 1: he's unlikely to be the kind of justice where you

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Speaker 1: go into a case, say like we did in an

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Speaker 1: abortion case when Justice Kennedy was on the course of court,

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Speaker 1: where you wouldn't be sure which way he was gonna

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Speaker 1: end up going with. With the Chief Justice, it is

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Speaker 1: more in most cases likely to be that we are

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Speaker 1: pretty sure that he is going to reach a conservative outcome.

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Speaker 1: It's more a question of how far will he go. Well,

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Speaker 1: in your story, you describe Robert's history on the court

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Speaker 1: and how he's helped the court to shift right, but

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Speaker 1: usually in increments. Tell us about that. Yes, so we've

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Speaker 1: seen this in several cases. Uh. One example has to

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Speaker 1: do with the Voting Rights Act. Uh. There's a big

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Speaker 1: decision called Shelby County a few years ago that's struck

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Speaker 1: down a core part of the Voting Rights Act. Well,

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Speaker 1: the court actually could have reached that result a few

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Speaker 1: years earlier. They had another case, uh called Northwest Austin

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Speaker 1: Municipal Utility District. But the court stopped short and essentially

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Speaker 1: what they said was, Hey, there's a good chance we're

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Speaker 1: going to strike down this provision of the law, but

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Speaker 1: we're going to give Congress a chance to change the law. First,

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Speaker 1: Congress didn't act and then the court went further. So Uh,

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Speaker 1: it's the kind of decision that that is. It's it's

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Speaker 1: an incremental decision may ultimately reach the same spot that

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Speaker 1: some of the hard grow conservatives want. But the way

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Speaker 1: Chief Justice Roberts seems to like to operate is doing

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Speaker 1: it and doing something in a couple of steps so

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Speaker 1: that it doesn't seem like quite as big of a

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Speaker 1: shock when you get to the ultimate point. But there

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Speaker 1: are times when he doesn't take that step. There are times, Yes.

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Speaker 1: The biggest example is probably in the affirmative action context. Uh.

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Speaker 1: He uh famously wrote in a case UH involving UH

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Speaker 1: the high school and second and uh a middle school integration,

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Speaker 1: he wrote that the way to the scop to stop

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Speaker 1: discrimination on the basis of race is to stop discriminating

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Speaker 1: on the basis of race. In other words, UH, we

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Speaker 1: need to be color blind here and not assigned students

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Speaker 1: to schools based on uh their race. And one would

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Speaker 1: imagine that would apply in the college context as well.

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Speaker 1: In the area of race. He does seem to be

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Speaker 1: more willing to go a bit further and a bit

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Speaker 1: a bit more boldly. So he has certain powers as

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Speaker 1: the chief and there's no longer the swing vote of

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Speaker 1: Justice Kennedy. How much power does he have beyond that

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Speaker 1: or the other justices to shape what cases the court

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Speaker 1: takes and how they're decided. He really doesn't have much power,

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Speaker 1: at least in terms of his formal powers. They all

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Speaker 1: get one vote. When it comes to to what takes

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Speaker 1: cases to take. It takes four justices to agree to

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Speaker 1: greeting or case um. His power is going to come

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Speaker 1: in part by the fact that he is that that

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Speaker 1: middle justice whose fifth vote the Conservatives will need if

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Speaker 1: we get to a case where they're going to overturn

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Speaker 1: or think about overturning Rogue Wade for example. The Conservatives, Uh,

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Speaker 1: may well think we have four votes to do that,

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Speaker 1: but we don't want to take up a case that

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Speaker 1: considers it until we know that we have the Chief

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Speaker 1: Justice with us. So just by by virtue of his

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Speaker 1: position as the potential fifth vote, he's going to have

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Speaker 1: a lot of power. So Gregg, what areas are there

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Speaker 1: this term where we might be seeing liberal conservative splits

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Speaker 1: those five four decisions? Yes, So for her, it's interesting.

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Speaker 1: We have very few in the court just in the

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Speaker 1: last few days to sort of ducked a couple more cases,

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Speaker 1: very few really big hot button issues, but there are

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Speaker 1: a few things in the pipeline that are going to

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Speaker 1: be hard for the court to avoid. So there's another

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Speaker 1: case appeal pending involving partisan jerrymandering. This is the case

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Speaker 1: out of North Carolina. Uh uh for for boring technical reasons.

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Speaker 1: It's going to be hard for the Court not to

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Speaker 1: take up that case. And when they do, there's probably

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Speaker 1: a very good chance they'll say, you can't challenge a

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Speaker 1: voting map as being so partisan it violates the Constitution. Uh.

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Speaker 1: There's a perpolating case involving President Trump's effort to rescind

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Speaker 1: the DACA program for deferring deportation for some young immigrants. Uh.

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Speaker 1: If lower courts go against the President on that, it's

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Speaker 1: going to be very hard for the Supreme Court to say, no,

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Speaker 1: we don't want to take this case. And those are

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Speaker 1: the types that are very likely to lend themselves to

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Speaker 1: five four decisions. Almost out of time here, But today,

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Speaker 1: what did the court duck today? So it's actually duck

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Speaker 1: may have been the wrong word to use. They did,

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Speaker 1: they did? There was there was a voting case that

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Speaker 1: they refused to take today. Um. There are a couple

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Speaker 1: of penning cases June that are very interesting, one involving

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Speaker 1: UH Medicaid funding for for planned parents hood, one involving

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Speaker 1: a forty ft cross as a war memorial in outside

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Speaker 1: Washington here where the court has just not said whether

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Speaker 1: it's going to take the case. They may take them eventually,

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Speaker 1: but so far they're holding off. All right, Thanks so much, Gregg.

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Speaker 1: That's Bloomberg new Supreme Court report of Greg's store. Thanks

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Speaker 1: for listening to the Bloomberg Law Podcast. You can subscribe

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Speaker 1: and listen to the show on Apple Podcasts, SoundCloud, and

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Speaker 1: on Bloomberg dot com slash podcast. I'm June Brasso. This

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Speaker 1: is Bloomberg Ye