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

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Speaker 2: I'm declaring a mistrial in this case.

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Speaker 3: Judge Beverly Canon declared a mistrial last week after juror's

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Speaker 3: deadlock in the polarizing, high profile case of Karen Reid,

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Speaker 3: a woman accused of striking her Boston Police officer boyfriend

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Speaker 3: with her SUV and leaving him to die in a snowstorm.

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Speaker 3: The trial had lasted two months and featured more than

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Speaker 3: six hundred pieces of evidence and more than seventy witnesses,

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Speaker 3: but on the fifth day of deliberations, jurors sent the

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Speaker 3: judge a note saying they remained at an impass.

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Speaker 4: To continue to deliberate would be futile and only serve

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Speaker 4: to force us to compromise these deeply held beliefs.

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Speaker 2: I'm not going to do that to you, folks. Your

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Speaker 2: service is complete, but.

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Speaker 3: The case is far from over. Prosecutors say they intend

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Speaker 3: to retry. Read defense attorney Out Jackson says the result

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Speaker 3: will be the same.

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Speaker 4: The Commonwealth did their worst. They brought the way to

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Speaker 4: the state based on spurious charges, based on compromised investigation

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Speaker 4: and investigators and compromised witnesses. This is what it looks like.

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Speaker 4: And guess what they failed. They failed miserably and they'll

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Speaker 4: continue to fail.

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Speaker 3: Joining me is an expert in criminal law, Daniel Medwebb,

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Speaker 3: a professor at Northeastern Law School. For those who have

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Speaker 3: not been following this case closely, can you give us

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Speaker 3: an overview of the facts.

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Speaker 2: So a few years ago, a woman named Karen Reid,

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Speaker 2: who's now in her mid forties, was driving her boyfriend

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Speaker 2: to a party after a night of bar hopping in

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Speaker 2: a town called Kenton, Massachusetts. But it's not really a

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Speaker 2: suburb of Boston. It's a little further away than a suburb,

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Speaker 2: And so she dropped him off. She'd had quite a

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Speaker 2: bit to drink that night, and then essentially he was

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Speaker 2: found dead by her and a couple of her friends

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Speaker 2: the next morning. And so the initial theory was that

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Speaker 2: maybe she dropped him off and while she was doing

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Speaker 2: a three point turn to leave, she might have inadvertently

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Speaker 2: clipped him or it wortinly, it's sort of a bit

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Speaker 2: unclear at first with her car, and because he had

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Speaker 2: also been drinking, he fell down. It was a night

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Speaker 2: of a snowstorm, and ultimately he died of hypothermia. That

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Speaker 2: was sort of the initial kind of impression of the case,

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Speaker 2: And at first, I think a lot of people thought

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Speaker 2: of this as, you know, potentially an accident, you know,

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Speaker 2: a problem of drunk driving and a mistake. Over time,

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Speaker 2: it evolved into a lot more. The government indicted Karen

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Speaker 2: Reid for not just manslaughter, sort of recklessly causing the

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Speaker 2: death of this man. His name is John o'keith. He

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Speaker 2: was a Boston Police Department officer who also was taking

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Speaker 2: care of his family member's children. So he had a

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Speaker 2: lot of really wonderful attributes apparently, so she's charged with

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Speaker 2: not just reckless mansdaughter, but also she's indicted on secondary murder,

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Speaker 2: and the prosecution had a number of hostile voice messages

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Speaker 2: that she had left to O'Keefe, indicating that it was

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Speaker 2: a very volatile and strained relationship. Now, over time, the

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Speaker 2: defense undercuts the theory a that Karen read had even

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Speaker 2: hit John O'Keeffe sort of undercut that theory, and b

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Speaker 2: began to develop evidence of an alternative theory that potentially

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Speaker 2: John O'Keeffe had gone inside the house where the party

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Speaker 2: was an incident had occurred, sort of unclear exactly what

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Speaker 2: had transpired, and people at the party had left O'Keefe

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Speaker 2: for did outside the house. So, on the one hand,

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Speaker 2: you have prosecutors who believe that either again inadvertently or btinly,

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Speaker 2: Karen Reid struck and killed her boyfriend while dropping him

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Speaker 2: off after a night of drinking and a lot of

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Speaker 2: confrontations and volatility in the relationship. The defense theory is

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Speaker 2: that she may never at him at all, that the

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Speaker 2: police essentially engaged in a sloppy investigation, and there are

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Speaker 2: lots of evidence about haphazard techniques used in the investigation,

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Speaker 2: and the defense that's made allegations that some evidence was

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Speaker 2: planted suggesting that Karen reeve did it and the police

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Speaker 2: never investigated this alternative theory, what would.

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Speaker 3: Be the reason. So with the defense's alternative theory, what

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Speaker 3: was the reason they gave for why O'Keefe's friends would

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Speaker 3: have left him for dead outside the house in the

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Speaker 3: snow well.

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Speaker 2: The defense theory is that there was some bad blood

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Speaker 2: between this man, John O'Keefe, the secedent, and some of

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Speaker 2: the members at the house party, including the Albert family,

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Speaker 2: a guy named Brian Albert who was a Boston Police

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Speaker 2: Department detective that that Alberts had had I hate to

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Speaker 2: use the term feud because it sort of conjures up

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Speaker 2: these sort of small town chiefs, but there had been

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Speaker 2: some animosity between the Alberts family and the O'Keefe family.

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Speaker 2: In addition, another person at the party, a man named

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Speaker 2: Brian Higgins, who was an ATF officer, had apparently exchanged

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Speaker 2: some flirtatious text messages with Karen Reid beforehand, so the

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Speaker 2: defense sort of alluded to the idea that he had

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Speaker 2: a love interest in Karen Reid and maybe had a

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Speaker 2: romantic reason to not like John O'Keefe. There are various

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Speaker 2: theories that were floated, and the defense obviously struggled to

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Speaker 2: substantiate them, in part because the police didn't secure the

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Speaker 2: crime scene, they didn't thoroughly investigate the house or search

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Speaker 2: the house. According to the defense, there were a lot

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Speaker 2: of missteps in the investigation. So that's sort of part

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Speaker 2: of it. And it's a situation where you look at

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Speaker 2: this case and depending on your theory of the case,

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Speaker 2: you can interpret a lot of the evidence in a

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Speaker 2: way that supports your theory. For people who think that

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Speaker 2: Karen Read did it, a key fact is that she

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Speaker 2: allegedly said to some of the emergency responders and to

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Speaker 2: her friends when she found John O'Keefe's body, and around

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Speaker 2: that time, I hit him. I hit him. I hit him,

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Speaker 2: sort of an allusion to the fact that she had

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Speaker 2: hit him and there was evidence of a broken tail light.

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Speaker 2: And some people will look at that and they say

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Speaker 2: that's evidence of her culpability. Other people view it as

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Speaker 2: more speculation on her part that she just can't remember

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Speaker 2: what happened because she'd been drinking and she's just, you know,

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Speaker 2: mentioning this possible horrible situation. Maybe I hit him, Maybe

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Speaker 2: I hit him, And that's sort of the defense explanation

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Speaker 2: for it. So there are lots of facts, lots of

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Speaker 2: twists and turns, and I think it's one of the

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Speaker 2: reasons why people have such strong opinions of the case.

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Speaker 3: In order to believe the defense, would you have to

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Speaker 3: believe that law enforcement planted evidence and engage in a

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Speaker 3: cover up and a massive conspiracy.

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Speaker 2: You know, I don't know about that. I mean, when

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Speaker 2: I look at this case, and I should mention, you know,

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Speaker 2: I have nothing to do with the case. I'm not

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Speaker 2: part of the defense team, but I am a former

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Speaker 2: defense lawyer, and as a former defense lawyer, I often

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Speaker 2: think of the defense strategies at trial, and the major

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Speaker 2: defense strategy in a lot of cases, of course, is

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Speaker 2: reasonable doubt. In order to convict someone of a crime,

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Speaker 2: the burden is on the prosecution to prove guilt beyond

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Speaker 2: a reasonable doubt. So I don't think it's so much

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Speaker 2: that the defense would have to show this massive cover

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Speaker 2: up as much as the defense would have to show

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Speaker 2: that there's reasonable doubt carrying Reads struck and killed John o'kee. Now,

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Speaker 2: I think you're right. The way the case was tried

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Speaker 2: and the way social media has sort of grabbed onto

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Speaker 2: the case, there's a sense that for you to think

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Speaker 2: that carring Mead is innocent, you have to believe in

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Speaker 2: this massive cover up. But I'm not so sure. It

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Speaker 2: could be that people have lingering doubts about her involvement

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Speaker 2: because of a series of facts that just really don't

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Speaker 2: add up. So I think it depends. I think it depends.

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Speaker 3: The tail light of her SUV was broken and pieces

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Speaker 3: of it were found in the snow. It seems indicative

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Speaker 3: that something happened there was the defense asking the jury

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Speaker 3: to believe that police planted that.

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Speaker 2: Yeah, I mean, I think that is part of it, right.

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Speaker 2: I think the defense theory certainly was that the police

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Speaker 2: were involved in planting evidence, including apparently evidence of a

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Speaker 2: hair of John O'Keefe that was damned on the core

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Speaker 2: or on the taille or the fragments. I can't call

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Speaker 2: exactly what, but there's all this other evidence that maybe

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Speaker 2: the jury could believe that doesn't necessarily point to some

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Speaker 2: framing or massive cover up, as much as it might

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Speaker 2: point to the fact that the police didn't investigate the

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Speaker 2: case as thoroughly as possible. So for instance there and

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Speaker 2: again I'm not offering any view on this, it's just

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Speaker 2: looking at the evidence and sort of speculating about whether

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Speaker 2: there was reasonable doubt generated. You know, one issue that

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Speaker 2: came up the trial related to John o'keef's injuries, and

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Speaker 2: he was found with injuries that may have been inconsistent

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Speaker 2: with being struck by a car. There were certain injuries

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Speaker 2: to his arm and elsewhere. The defense argued that these

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Speaker 2: were dog bites, and that the Albert had a dog,

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Speaker 2: and there were all these other allegations. But according to

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Speaker 2: the pathologist and some of the medical evidence, there was

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Speaker 2: some debate about John o'keith's injuries and whether, in fact

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Speaker 2: the car could have caused the injuries alone or whether

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Speaker 2: there was something else. You know, I think it is

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Speaker 2: interesting what the defense did here and an interesting aspect

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Speaker 2: of this. Strategically, the defense could have just focused on

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Speaker 2: reasonable death. Here are some of the hold look at

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Speaker 2: the injuries. The injuries don't seem entirely consistent with just

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Speaker 2: being struck by a car during a three point term.

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Speaker 2: There were other pieces of evidence. There was a cloud

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Speaker 2: driver who was there later in the night and didn't

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Speaker 2: see a body on the lawn. There was evidence that

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Speaker 2: maybe someone in the inside the house had conducted a

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Speaker 2: Google search how long or how's long to die in

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Speaker 2: the snow at about two twenty five, two thirty am,

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Speaker 2: before Karen Reid had returned. So there are all these

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Speaker 2: little kidbits of information that maybe don't go to police malfeasance,

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Speaker 2: but maybe suggest something else happened and the police missed it. So,

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Speaker 2: in other words, it's sort of a long way of saying,

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Speaker 2: I mean, you can look at this case at the extremes,

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Speaker 2: right one extreme the prosecution theory. You know, Karen Reid

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Speaker 2: intended to kill John o'kee another extreme, extensive police cover up.

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Speaker 2: But for people who aren't inclined to go to the extremes,

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Speaker 2: there might be a feeling that it's somewhere in the middle,

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Speaker 2: that maybe something bad happened inside the house, really bad,

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Speaker 2: and the police didn't do the right investigation to ensure

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Speaker 2: that all the suspects were interrogated properly. Or some people

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Speaker 2: might think Karen Read mistakenly, recklessly did strike John o'ke,

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Speaker 2: and it's more of a tragic accident than some type

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Speaker 2: of intentional homicide. But I think the op shot is

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Speaker 2: when you look at this evidence, at least from my perspective,

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Speaker 2: I wasn't entirely surprised that it was a hung jury

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Speaker 2: because of the complexity of the case, because of all

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Speaker 2: its evidence cutting both sides. It sort of made sense

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Speaker 2: to me that maybe twelve people would struggle to come

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Speaker 2: up with unanimous decision.

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Speaker 3: Stay with me, Daniel. Coming up next on the Bloomberg

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Speaker 3: Lawn Show, I'll continue this conversation with Professor Daniel Medweb

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Speaker 3: of Northeastern Law School. How might the prosecution change its

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Speaker 3: strategy at a retrial, and later in the show, how

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Speaker 3: the Supreme Court's decision reversing the forty year old Chevron

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Speaker 3: doctrine is already wreaking havoc at federal agencies. I'm June

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Speaker 3: Grosso and you're listening to Bloomberg. A mistrial was declared

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Speaker 3: last week after jurors deadlocked in the case of Karen Reid,

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Speaker 3: a woman accused of striking her Boston Police officer boyfriend

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Speaker 3: with her SUV and leaving him to die in a

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Speaker 3: snows Prosecutors say they intend to retry read and a

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Speaker 3: hearing is scheduled in the case for July twenty second.

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Speaker 3: I've been talking to Professor Daniel Medweb of Northeastern Law School.

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Speaker 3: Michael Proctor, the lead investigator for the Commonwealth, has been

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Speaker 3: relieved of duty because of serious misconduct that emerged in

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Speaker 3: testimony at the trial. Tell me about his testimony.

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Speaker 2: So, Michael Practor was the lead investigator, and he's a

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Speaker 2: member of the State Police. And one huge benefit of

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Speaker 2: getting the state police involved in homicide investigations, especially an

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Speaker 2: investigation of the death of a Boston Police Department officer,

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Speaker 2: is to sort of avoid conflicts of interest, right you

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Speaker 2: have a different agency involved in the investigation. That's one

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Speaker 2: of the theories behind it. There are several problems, but

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Speaker 2: one was that Michael Procter had these personal relationships with

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Speaker 2: some members of the Albert family, people who are at

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Speaker 2: the party, that according to the defense, at least, he

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Speaker 2: didn't adequately disclose. So they're this sense of potential conflicts

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Speaker 2: of interest that sort of swirling around his involvement, and

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Speaker 2: that I think has spanned the flames of some of

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Speaker 2: the fears about a cover up. That it wasn't just

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Speaker 2: an issue of floppy investigation. Some believers in Karen Reid's

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Speaker 2: innocence would suggest it was more purposeful and sort of

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Speaker 2: malevolence than that. So that's one problem with Michael Pactor,

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Speaker 2: just that there was a relationship there that a tangled

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Speaker 2: web that may not have been adequately disclosed on the

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Speaker 2: front end. A second problem, and the one that really

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Speaker 2: made a lot of headlines, is that apparently over the

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Speaker 2: course of the investigation, he was exchanging a variety of

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Speaker 2: inappropriate text messages with people about the Karen Reid case,

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Speaker 2: and he referred to Karen Reid in sort of very

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Speaker 2: vulgar and inappropriate terms. He called her a whack job,

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Speaker 2: He made fond of her medical condition, He indicated that

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Speaker 2: he had been looking for nude photographs and was disappointed

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Speaker 2: that he hadn't fanned any nude photographs. You know, for

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Speaker 2: this to be revealed publicly in high profile case, you

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Speaker 2: obviously really cast dispersions on him as an investigator, of

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Speaker 2: his credibility, his professionalism. But it really sort of called

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Speaker 2: into question, you know, police propriety in general. If this

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Speaker 2: type of behavior occurs in a high profile investigation of

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Speaker 2: the death of a Boston police officer, what happens in

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Speaker 2: a more run of the milk, What happens behind the

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Speaker 2: scenes with the investigation? You know, how are the defendants views,

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Speaker 2: how are the victims characterized? Are the eyes dotted and

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Speaker 2: the peace crossed? If they weren't all handled well here

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Speaker 2: in a case that presumably the police would really have

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Speaker 2: an interest in solving accurately, you know what happens in

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Speaker 2: every other case. So in some respects, I think the

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Speaker 2: Karen Read case is also a little bit of a

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Speaker 2: forum on police investigation techniques.

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Speaker 3: The jury foreman said the panel was starkly divided. Our

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Speaker 3: perspectives on the evidence are starkly divided. The deep division

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Speaker 3: is not due to a lack of effort or diligence,

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Speaker 3: but rather a sincere adherence to our individual principles and

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Speaker 3: moral convictions. So this wasn't a case of like one

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Speaker 3: holdout juror Yes.

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Speaker 2: So in Massachusetts, you can't necessarily figure out as a

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Speaker 2: matter of law, you know what the breakdown was. Over time,

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Speaker 2: I imagine we will get a sense of it, just

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Speaker 2: because jurors will tell people about what the breakdown was.

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Speaker 2: But the implication from the language, the use of plural

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Speaker 2: and there is an implication it wasn't necessarily one hold out.

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Speaker 2: We don't know how many. We don't know whether it

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Speaker 2: was a total split. We don't know whether the jury

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Speaker 2: was tilted on one side or the other. But there

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Speaker 2: is a sense. I think you're right that there was

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Speaker 2: a deep division, a deeply held division in the jury,

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Speaker 2: which again is an entirely surprising given the deep division

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Speaker 2: in the community in that particular county. When thinking about

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Speaker 2: this case and thinking about the evidence, the.

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Speaker 3: District attorney's office said it plans to retry the case.

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Speaker 3: Do you see a way that it can avoid made

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Speaker 3: any of the mistakes or defense arguments that happened in

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Speaker 3: the first trial.

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Speaker 2: I do. I think it's an interesting calculation. I think

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Speaker 2: it's natural that the DA would announce that they plan

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Speaker 2: to try the case I immediate aftermath. That's sort of

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Speaker 2: a natural reaction. So I would be surprised if the

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Speaker 2: prosecutor simply said justice would serve and we're moving on.

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Speaker 2: They obviously are vested in the belief that Karen Read

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Speaker 2: is guilty. They got these indictments, which means that at

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Speaker 2: least the grand jury fan there was probable cause for

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Speaker 2: these charges, and they believe, presumably that there is proof

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Speaker 2: beyond reasonable doubt that the cheese fact guilty. So it's

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Speaker 2: not surprising that they said that. As to whether at

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Speaker 2: the end of the day they will actually proceed with

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Speaker 2: the retrial is a more complicated and nuanced decision because

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Speaker 2: you have to think about whether the result would be different.

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Speaker 2: As you point out, are there ways for the prosecution

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Speaker 2: to sort of mitigate some of the defense arguments or

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Speaker 2: overcome some of the defense arguments, or are there some

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Speaker 2: intrinsic obstacles here the likely result will be similar, So

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Speaker 2: we can kind of think that through. I mean, now

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Speaker 2: the prosecution has a sense of what the defense theory is,

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Speaker 2: so it does allow them, and they have a year

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Speaker 2: after the formal retrial is ordered, there's going to be

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Speaker 2: a status confemplator this month. Let's say that prosecution reasserts

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Speaker 2: that it plans to retry is Read, and then they

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Speaker 2: would have one year for the trial to start from

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Speaker 2: that date. Over the course of that time, they might

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Speaker 2: investigate further. They might think through some of the defense

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Speaker 2: arguments and come up with ways to counteract them. But

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Speaker 2: there are some intrinsic kurdles here that may be difficult

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Speaker 2: to overcome. One and we talked about this a moment ago,

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Speaker 2: is Michael factor. He was the lead investigator, and I

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Speaker 2: don't know how he is kept out of this case,

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Speaker 2: how those text messages are kept out, even if the

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Speaker 2: defense sort of brings it in. Other intrinsic problems the

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Speaker 2: injuries on John O'Keefe and some of the evidence that

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Speaker 2: suggests that maybe it wasn't consistent with just being struck

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Speaker 2: by the core evidence about that Google search and the

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Speaker 2: timing of that Google search, and there's all sorts of

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Speaker 2: other evidence that sort of complicates the case for the prosecution.

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Speaker 2: Some of it maybe can be overcome with better forensic

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Speaker 2: experts than they had before or other strategies, but a

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Speaker 2: really important question that I imagine the das are asking themselves

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Speaker 2: right now, is can we prove this case beyond a

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Speaker 2: reasonable doubt given some of these inherent obstacles, some of

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Speaker 2: which are related to how the investigation preceded, sort of

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Speaker 2: some of these sloppy steps taken in the investigation.

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Speaker 3: Do you think this is a case of a very

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Speaker 3: good defense lawyer? Was it more the strategy in other words,

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Speaker 3: and the way the defense lawyer approached it, maybe another

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Speaker 3: lawyer wouldn't have been able to do as well.

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Speaker 2: That's possible. That's possible. I think she had a good

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Speaker 2: defense team that did a very good job of investigating

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Speaker 2: the case and cross examining the witness. I think that's,

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Speaker 2: I mean, major part of this. Undoubtedly it also is

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Speaker 2: and I often say this to my students. What's amazing

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Speaker 2: about trials is we often think about them as sorting

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Speaker 2: mechanisms between guilt and innocence, but really it's a sorting

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Speaker 2: mechanism between guilt and not guilty. And the idea is,

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Speaker 2: if there is reasonable doubt about somebody's culpability, the jury

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Speaker 2: must acquit. And here the jury was conflicted about that.

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Speaker 2: Some jurors believe she was guilty beyond reasonable doubt. Others didn't.

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Speaker 2: So I think the defense did a very good job

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Speaker 2: of raising reasonable doubt, in part by alluding to innocence

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Speaker 2: by suggesting that it was a framing. But other lawyers

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Speaker 2: might have taken a strategy of just showing reasonable doubt,

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Speaker 2: just poking holes in the investigation, just poking holes in

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Speaker 2: the prosecution theory, without necessarily casting dispersions on the government,

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Speaker 2: so to speak. So I'm not so sure whether it

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Speaker 2: was an issue of very effective defense advocacy or also

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Speaker 2: an issue of the truth is often gray. It's not

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Speaker 2: always black and white. We can't always see it with

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Speaker 2: perfect clarity, and sometimes that grayness reflects the ambiguities of

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Speaker 2: the facts, and those ambiguities are sometimes enhanced by what

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Speaker 2: the police did or did not do. So I think

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Speaker 2: what's very interesting for the prosecution right now is, even

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Speaker 2: if they can course correct, is this going to be

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Speaker 2: a wise use of government resources to retry her? And

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Speaker 2: if they retry her, does it make sense to focus

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Speaker 2: on that second degree murder charge, the intentional murder charge,

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Speaker 2: which felt like a stretch, even though there was some

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Speaker 2: evidence suggesting there was a lot of hostility in the relationship,

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Speaker 2: and some very nasty voicemail messages that Karen Reid had

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Speaker 2: left for John O'Keefe. You might prosecutors choose to just

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Speaker 2: focus on the drunk driving homicide charge, the manslaughter charge,

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Speaker 2: and make it more about an abhorrent accident. I don't know.

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Speaker 2: These are all things that they're going to think about

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Speaker 2: the month.

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Speaker 3: Do you think that a plea deal is possible?

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Speaker 2: So let's just sort of reverse engineers. Assuming the prosecution

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Speaker 2: continues to believe in the merits of this prosecution, They

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Speaker 2: believe Karen Reid is guilty, they believe justice would be

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Speaker 2: served by pursuing it. Let's just assume that her purposes

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Speaker 2: of argument, then they're thinking, well, perhaps given some of

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Speaker 2: the obstacles in the case, it would make sense to

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Speaker 2: offer a plea. If so, the question becomes, you know,

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Speaker 2: what type of plea deal do they offer? Do they

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Speaker 2: offer manslaughter, do they just offer leaving the scene of

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Speaker 2: the crime, do they just offer driving under the influence?

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Speaker 2: I mean, what do they offer? It appears as though

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Speaker 2: everything that the defense has said about the case publicly,

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Speaker 2: I very much doubt that Karen Reid would be interested

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Speaker 2: in a plea deal that accepts responsibility for the death right.

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Speaker 2: I mean, she might agree that she drove while drinking

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Speaker 2: that night, and she might accept a deal to that

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Speaker 2: think that acknowledges their culpability for the death Unless the

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Speaker 2: defense really changes its tune, I don't think they would

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Speaker 2: accept it. So the viability of the plea offer is

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Speaker 2: contingtion not just on whether the prosecution would offer it,

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Speaker 2: but what the defense would accept it. So I imagine the

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Speaker 2: prosecution of courses thinking about a plea deal as a

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Speaker 2: way to, in their view, achieve justice their vision of justice.

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Speaker 2: But I bet from the defense perspective they would hold out.

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Speaker 2: And the mistrial is pretty good evidence that what they

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Speaker 2: did the first time around you may have legs and

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Speaker 2: work again.

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Speaker 3: I assume we're going to find out a lot more

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Speaker 3: at the next court session, which is scheduled for July

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Speaker 3: twenty second. Thanks so much, Daniel. That's Daniel Medweb, a

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Speaker 3: professor at Northeastern Law School. Coming up next on the

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Speaker 3: Bloomberg Wall Show. The Supreme Court throwing out the forty

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Speaker 3: year old Chevron doctrine is already wreaking havoc on federal

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Speaker 3: agency rules in areas like education, healthcare, and employment. I'm

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Speaker 3: June Grosso, and you're listening to Bloomberg. In one of

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Speaker 3: the most watched decisions this term, the Supreme Court eliminated

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Speaker 3: a forty year old precedent known as Chevron deference, a

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Speaker 3: doctrine that empowered federal regulators to interpret unclear laws. The

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Speaker 3: six to three decision down ideological lines takes power away

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Speaker 3: from executive branch agencies that enforce all kinds of rules

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Speaker 3: in areas from the environment and finance to education and healthcare.

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Speaker 3: The Chevron doctrine was a long time target of conservatives

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Speaker 3: unhappy with the rule making power of executive branch agencies,

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Speaker 3: and it took less than a week for lower federal

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Speaker 3: courts to start barring agencies from enforcing Biden administration rules.

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Speaker 3: The rules prohibiting transgender discrimination in healthcare and public schools

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Speaker 3: were among the first to be targeted. Joining me is

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Speaker 3: an expert in administrative law. Carrie Cooliniesie, a professor at

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Speaker 3: the University of Pennsylvania Law School. I want to start

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Speaker 3: with the odd question your reaction to the Supreme Court's

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Speaker 3: decision eliminating the Chevron doctrine.

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Speaker 1: Well, we knew that the Court or at least a

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Speaker 1: good number of justices on the Court were critical of

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Speaker 1: the Chevron decisions, So in some sense it's not terribly surprising,

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Speaker 1: But in another sense it is quite dramatic, because, first

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Speaker 1: of all, the Supreme Court seldom overturns any of its decisions.

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Speaker 1: That's a rare event. But also in this case, this

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Speaker 1: had been a decision that was one of the most

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Speaker 1: widely cited of all Supreme Court decisions, and certainly one

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Speaker 1: of the most widely cited in the administrative law world,

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Speaker 1: that area of law that governs the operation of government agencies.

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Speaker 1: So there's a real potential for a lot of mischief

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Speaker 1: and confusion and further contestation when the Court overturns the

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Speaker 1: decision that's been so widely cited like this one.

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Speaker 3: Federal district courts already are making moves on this, so

434
00:25:02,080 --> 00:25:05,800
Speaker 3: district courts in Mississippi, Florida, and Texas all barred the

435
00:25:05,840 --> 00:25:08,879
Speaker 3: Department of Health and Human Services from enforcing a rule

436
00:25:08,920 --> 00:25:13,440
Speaker 3: that prohibits healthcare discrimination against people based on their sexual

437
00:25:13,480 --> 00:25:17,760
Speaker 3: orientation or gender identity under the Affordable Care Act. Are

438
00:25:17,800 --> 00:25:20,400
Speaker 3: you surprised that this is happening so quickly?

439
00:25:21,040 --> 00:25:24,240
Speaker 1: Not really. First of all, you know, there are many

440
00:25:24,960 --> 00:25:29,119
Speaker 1: district court judges that have I think an affinity with

441
00:25:29,320 --> 00:25:32,760
Speaker 1: the majority on the Supreme Court in their skepticism toward

442
00:25:33,040 --> 00:25:38,600
Speaker 1: administrative agencies and the exercise of authority by administrative agencies,

443
00:25:39,080 --> 00:25:42,239
Speaker 1: and certainly on some of these hot button kinds of

444
00:25:42,280 --> 00:25:46,639
Speaker 1: issues today in American culture wars. The lower courts have

445
00:25:46,760 --> 00:25:50,240
Speaker 1: been caught up in these kinds of matters even before

446
00:25:50,400 --> 00:25:54,320
Speaker 1: the Supreme Court overturned Chevron, So that's not terribly surprising.

447
00:25:54,520 --> 00:25:57,160
Speaker 1: On the other hand, it is also the case that

448
00:25:57,400 --> 00:26:00,320
Speaker 1: the Supreme Court has sent a very strong signal to

449
00:26:00,880 --> 00:26:06,600
Speaker 1: lower court judges to take on administrative agencies, to embrace

450
00:26:06,800 --> 00:26:11,479
Speaker 1: your skepticism and assert your power over these agencies. That

451
00:26:11,640 --> 00:26:15,400
Speaker 1: is I think the dramatic symbolic import of the Court's

452
00:26:15,440 --> 00:26:19,960
Speaker 1: decision in the lower Bright Enterprises case that overturned Chevron.

453
00:26:20,160 --> 00:26:24,320
Speaker 3: So, in those three cases, it turned on the agency's

454
00:26:24,359 --> 00:26:27,720
Speaker 3: interpretation of the word sex under the Affordable Care Act

455
00:26:27,760 --> 00:26:31,760
Speaker 3: in Title nine. So are these judges then substituting their

456
00:26:31,760 --> 00:26:35,919
Speaker 3: own interpretation of what the word means for the agency?

457
00:26:36,040 --> 00:26:37,840
Speaker 3: And I mean, how are they coming up with this?

458
00:26:38,400 --> 00:26:42,440
Speaker 1: Well, that's what the Supreme Court has told lower court judges.

459
00:26:42,600 --> 00:26:47,440
Speaker 1: Their responsibility is to find the one and only one

460
00:26:47,840 --> 00:26:52,200
Speaker 1: best meaning of a statute based upon the judge's own

461
00:26:52,520 --> 00:26:55,679
Speaker 1: sense of what the statute should mean, not giving the

462
00:26:55,800 --> 00:26:59,800
Speaker 1: kind of deference that the agency would have been afforded

463
00:26:59,840 --> 00:27:02,119
Speaker 1: in the past under the Chevron doctrine.

464
00:27:02,359 --> 00:27:06,000
Speaker 3: Is it only when statutes are ambiguous that this is

465
00:27:06,040 --> 00:27:08,120
Speaker 3: supposed to be the interpretation?

466
00:27:08,680 --> 00:27:12,600
Speaker 1: Well, that was the framework under Chevron, was to first

467
00:27:12,640 --> 00:27:16,480
Speaker 1: ask whether the statute was ambiguous. Because let's be clear

468
00:27:17,440 --> 00:27:22,919
Speaker 1: about clarity. When statutes are not ambiguous, courts need to

469
00:27:23,000 --> 00:27:26,280
Speaker 1: follow them, agencies need to follow them, and courts need

470
00:27:26,320 --> 00:27:29,240
Speaker 1: to make sure agencies are following them. That was always

471
00:27:29,320 --> 00:27:33,200
Speaker 1: true under the Chevron doctrine. The Chevron doctrine came into

472
00:27:33,359 --> 00:27:37,920
Speaker 1: play when statutes were ambiguous. What does sex mean? A

473
00:27:37,960 --> 00:27:43,040
Speaker 1: statute could mean gender, It could mean anything related to gender,

474
00:27:43,440 --> 00:27:46,320
Speaker 1: you know. It could be narrow, it could be broad,

475
00:27:46,560 --> 00:27:51,399
Speaker 1: And that ambiguity under Chevron would have often been seen

476
00:27:51,440 --> 00:27:56,040
Speaker 1: as justifying an inquiry into whether the agency had been

477
00:27:56,080 --> 00:27:58,960
Speaker 1: delegated the authority to make the call about what that

478
00:27:59,119 --> 00:28:02,760
Speaker 1: ambiguous form or term meant, and as long as the

479
00:28:02,800 --> 00:28:06,679
Speaker 1: agency was reasonable, courts were obligated to go with what

480
00:28:06,800 --> 00:28:10,679
Speaker 1: the agency held. That's now changed, and in the face

481
00:28:10,720 --> 00:28:15,240
Speaker 1: of ambiguity, the obligation of the lower court is to

482
00:28:15,480 --> 00:28:19,119
Speaker 1: substitute its own decision, and maybe it will agree with

483
00:28:19,160 --> 00:28:22,399
Speaker 1: the agency, maybe it won't. It certainly should listen to

484
00:28:22,640 --> 00:28:25,760
Speaker 1: and gear the argument from the agency, but it doesn't

485
00:28:25,800 --> 00:28:27,920
Speaker 1: have to follow it in the same way that it

486
00:28:28,040 --> 00:28:30,320
Speaker 1: was supposed to under the Chevron doctrine.

487
00:28:30,560 --> 00:28:34,760
Speaker 3: Does the agency argument get any kind of weight outside

488
00:28:34,840 --> 00:28:38,080
Speaker 3: of you know, any litigant coming up and arguing a case.

489
00:28:38,120 --> 00:28:41,440
Speaker 3: Is there any more weight at all to an agency's interpretation?

490
00:28:42,520 --> 00:28:48,560
Speaker 1: Well, not really, although it's also not entirely clear what

491
00:28:48,720 --> 00:28:52,080
Speaker 1: the Supreme Court majority thinks should be given. You know,

492
00:28:52,280 --> 00:28:56,120
Speaker 1: there are passages in the lower Bright decision that say,

493
00:28:56,600 --> 00:29:00,520
Speaker 1: first of all, the agency should have its interpretation be

494
00:29:00,720 --> 00:29:06,120
Speaker 1: treated with respectful consideration. It may well have the power

495
00:29:06,200 --> 00:29:10,560
Speaker 1: to persuade the court under an older decision called Skidmore.

496
00:29:11,080 --> 00:29:14,240
Speaker 1: And it's also possible if you could read some passages

497
00:29:14,280 --> 00:29:17,960
Speaker 1: in the Loco Bright decision where the Supreme Court majority

498
00:29:18,080 --> 00:29:22,400
Speaker 1: has recognized that there may be evidence that Congress actually

499
00:29:22,440 --> 00:29:27,560
Speaker 1: intended to delegate to the agency the decision about what

500
00:29:27,640 --> 00:29:31,640
Speaker 1: the statute means. So in all of those situations, the

501
00:29:31,720 --> 00:29:37,440
Speaker 1: agency's interpretation will have some weight, but it won't have

502
00:29:37,720 --> 00:29:41,560
Speaker 1: the same kind of weight that it would have under

503
00:29:41,600 --> 00:29:42,920
Speaker 1: the Chevron doctrine.

504
00:29:43,000 --> 00:29:46,479
Speaker 3: The district courts that I mentioned were all conservative. So

505
00:29:46,720 --> 00:29:49,640
Speaker 3: what happens if the same issue comes up in a

506
00:29:49,640 --> 00:29:53,600
Speaker 3: different district court, let's say in New York or California,

507
00:29:54,200 --> 00:29:56,160
Speaker 3: and the court has a different interpretation of what the

508
00:29:56,240 --> 00:29:58,120
Speaker 3: word sex means. What happens? Then?

509
00:29:58,440 --> 00:30:00,720
Speaker 1: Yeah, we're going to end up with a situation where

510
00:30:00,720 --> 00:30:06,080
Speaker 1: we have competing judges, each giving their own best interpretation

511
00:30:06,200 --> 00:30:10,720
Speaker 1: of the statute and within their districts or if it's

512
00:30:10,760 --> 00:30:14,080
Speaker 1: at the Court of Appeals level, within their circuits, there

513
00:30:14,160 --> 00:30:18,040
Speaker 1: will be competing definitions. Maybe the Supreme Court will step

514
00:30:18,080 --> 00:30:20,520
Speaker 1: in and resolve some of these, but the Supreme Court

515
00:30:20,560 --> 00:30:25,840
Speaker 1: only here's what sixty or seventy or so cases per year,

516
00:30:26,160 --> 00:30:28,840
Speaker 1: So we're going to be living with I think a

517
00:30:28,840 --> 00:30:32,800
Speaker 1: lot more flux and conflict, and maybe one might even

518
00:30:32,840 --> 00:30:36,800
Speaker 1: say chaos in the law as these different judges reach

519
00:30:37,160 --> 00:30:41,960
Speaker 1: potentially different interpretations on their own accord following the Lower

520
00:30:42,040 --> 00:30:42,840
Speaker 1: Bright decision.

521
00:30:43,360 --> 00:30:46,520
Speaker 3: So this reminds me of what happened after the Dobs

522
00:30:46,600 --> 00:30:50,640
Speaker 3: case with abortion, where there's just chaos. I mean, didn't

523
00:30:50,640 --> 00:30:53,080
Speaker 3: the Supreme Court look at this and say, Wow, if

524
00:30:53,120 --> 00:30:55,200
Speaker 3: we do this, there's going to be chaos.

525
00:30:55,440 --> 00:30:57,760
Speaker 1: One thing to be keep in mind in this case

526
00:30:58,080 --> 00:31:02,200
Speaker 1: is that even under the Chevron there was the possibility

527
00:31:02,280 --> 00:31:06,400
Speaker 1: that different judges would find statutes to be clear and

528
00:31:06,760 --> 00:31:11,800
Speaker 1: other judges found them to be ambiguous. So statutory interpretation

529
00:31:12,040 --> 00:31:17,400
Speaker 1: has always been messy, and some messiness was to always

530
00:31:17,400 --> 00:31:20,640
Speaker 1: be expected. I think what's different now is that judges

531
00:31:20,680 --> 00:31:24,960
Speaker 1: aren't even being told to make decisions that accord deference

532
00:31:25,120 --> 00:31:28,680
Speaker 1: to agencies, and in situations of ambiguity, they're not even

533
00:31:28,720 --> 00:31:31,720
Speaker 1: being told that there should be some effort to try

534
00:31:31,760 --> 00:31:35,560
Speaker 1: to think about creating a uniformed decision across the country

535
00:31:35,560 --> 00:31:39,640
Speaker 1: by going with the agency in cases of statutory ties.

536
00:31:39,760 --> 00:31:43,800
Speaker 1: And the other thing to note is that these court decisions,

537
00:31:43,840 --> 00:31:48,760
Speaker 1: because they'll be based upon now ostensibly the judge's own

538
00:31:48,840 --> 00:31:54,120
Speaker 1: best interpretations of statutes, will get presidential effect in a

539
00:31:54,200 --> 00:31:59,520
Speaker 1: way that agency decisions actually under the Chevron doctrine didn't

540
00:31:59,640 --> 00:32:03,520
Speaker 1: have quite the same strong presidential effect. What I mean

541
00:32:03,560 --> 00:32:06,360
Speaker 1: by that is that under the Chevron doctrine, if the

542
00:32:06,360 --> 00:32:10,040
Speaker 1: court found that the statute was ambiguous, and then the

543
00:32:10,160 --> 00:32:12,600
Speaker 1: tie went to the agency as long as the agency's

544
00:32:12,680 --> 00:32:16,080
Speaker 1: interpretation was reasonable. Well, there was still room for the

545
00:32:16,160 --> 00:32:20,400
Speaker 1: agency at some later time to adapt or change its

546
00:32:20,680 --> 00:32:24,240
Speaker 1: understanding of the statute as long as that new meaning

547
00:32:24,600 --> 00:32:27,880
Speaker 1: was reasonable as well. And that won't be the case

548
00:32:28,120 --> 00:32:32,320
Speaker 1: with the new regime, because once the terms and meaning

549
00:32:32,360 --> 00:32:34,840
Speaker 1: of the statute is fixed by a court, it takes

550
00:32:34,840 --> 00:32:38,240
Speaker 1: on that strong presidential meaning and will have a much

551
00:32:38,320 --> 00:32:41,720
Speaker 1: less adaptive and responsive laws. So in some sense we'll

552
00:32:41,760 --> 00:32:45,520
Speaker 1: have more chaos and messiness I suspect, but also some

553
00:32:45,680 --> 00:32:47,120
Speaker 1: more rigidity as well.

554
00:32:47,480 --> 00:32:52,560
Speaker 3: In the Supreme Court decision, the opinion mentioned story decisives

555
00:32:52,560 --> 00:32:55,440
Speaker 3: more than thirty five times or something. What role does

556
00:32:55,480 --> 00:32:57,120
Speaker 3: story decisives play here?

557
00:32:57,560 --> 00:33:02,400
Speaker 1: Well, that's also a point of potential okaots from this decision.

558
00:33:02,520 --> 00:33:07,040
Speaker 1: Because Chevron had been so widely cited, new questions now

559
00:33:07,200 --> 00:33:12,760
Speaker 1: are arising about what is the status of old agency

560
00:33:12,840 --> 00:33:18,120
Speaker 1: interpretations that had been previously litigated and upheld under the

561
00:33:18,200 --> 00:33:24,920
Speaker 1: Chevron doctrine. The Court did anticipate this issue to some degree,

562
00:33:25,080 --> 00:33:28,719
Speaker 1: but it addressed it only in a very brief section

563
00:33:28,840 --> 00:33:33,200
Speaker 1: of its opinion, and in a way that isn't quite

564
00:33:33,360 --> 00:33:36,680
Speaker 1: crystal clear itself and will only I think, breed further

565
00:33:36,760 --> 00:33:40,600
Speaker 1: confusion and lesser until the court steps in and tries

566
00:33:40,680 --> 00:33:43,800
Speaker 1: to clarify things. But in brief, the court said that

567
00:33:43,960 --> 00:33:49,640
Speaker 1: prior agency actions, actually specific agency actions that had been

568
00:33:50,120 --> 00:33:54,720
Speaker 1: undertaken under a position or an interpretation approved under the

569
00:33:54,840 --> 00:33:59,920
Speaker 1: Chevron doctrine, those specific agency actions could not be overtre

570
00:34:00,000 --> 00:34:04,040
Speaker 1: earned just because the court was overturning Chevron. But there's

571
00:34:04,080 --> 00:34:08,600
Speaker 1: a whole host of ambiguities and questions about what all

572
00:34:08,680 --> 00:34:12,040
Speaker 1: that means. So it probably means that if somebody has

573
00:34:12,080 --> 00:34:16,640
Speaker 1: a permit or a license, or been the beneficiary of

574
00:34:16,719 --> 00:34:21,480
Speaker 1: some immigration decision in the past that was handed down

575
00:34:21,520 --> 00:34:24,839
Speaker 1: under a policy approved by courts under the Chevron doctor,

576
00:34:24,960 --> 00:34:29,160
Speaker 1: that those specific actions can't be overturned. But it doesn't

577
00:34:29,160 --> 00:34:34,600
Speaker 1: mean necessarily that the prior statutory interpretations can't be challenged

578
00:34:34,680 --> 00:34:39,520
Speaker 1: in new permit denials or licensed denials or adverse immigration

579
00:34:39,719 --> 00:34:42,959
Speaker 1: decisions that might come up. So you're likely to see

580
00:34:43,480 --> 00:34:49,440
Speaker 1: old interpretations now that had seemingly been settled law, sometimes

581
00:34:49,480 --> 00:34:53,680
Speaker 1: perhaps for years or not decades, being reopened and revisited.

582
00:34:53,920 --> 00:34:57,120
Speaker 3: I keep hearing about the terrible effects this decision is

583
00:34:57,160 --> 00:35:01,920
Speaker 3: going to have on the EPA one agency more than another,

584
00:35:02,080 --> 00:35:03,600
Speaker 3: or is it just across the board.

585
00:35:04,040 --> 00:35:07,040
Speaker 1: This is a decision that affect the agencies across the

586
00:35:07,160 --> 00:35:12,040
Speaker 1: entire federal government. All agencies are creatures of statutes. Congress

587
00:35:12,280 --> 00:35:15,920
Speaker 1: creates them by statute, empowers them by statutes, and they

588
00:35:15,960 --> 00:35:20,560
Speaker 1: have to operate within the confines of statutes. So all

589
00:35:20,640 --> 00:35:25,719
Speaker 1: of these issues about statutory interpretation and who gets to

590
00:35:25,760 --> 00:35:31,080
Speaker 1: decide questions of statutory interpretation, courts or agencies, those are

591
00:35:31,400 --> 00:35:35,160
Speaker 1: really inherent throughout our modern form of government.

592
00:35:35,719 --> 00:35:39,720
Speaker 3: So is this the Court taking more power for the courts?

593
00:35:40,160 --> 00:35:43,160
Speaker 1: Yeah, this is of a piece with other decisions that

594
00:35:43,360 --> 00:35:48,960
Speaker 1: are making the Court a more central player within modern government,

595
00:35:49,160 --> 00:35:52,400
Speaker 1: probably more central than it's been for at least fifty years,

596
00:35:52,400 --> 00:35:56,960
Speaker 1: if not more. The overturning of Chevron means that the

597
00:35:57,040 --> 00:36:03,200
Speaker 1: Court must decide questions of dettutory interpretation and agencies don't

598
00:36:03,239 --> 00:36:07,880
Speaker 1: merit anything more than perhaps respectful consideration. But it's also

599
00:36:08,239 --> 00:36:12,680
Speaker 1: something to combine with another decision that the Court handed

600
00:36:12,719 --> 00:36:15,680
Speaker 1: down at the end of the term that allows new

601
00:36:15,719 --> 00:36:20,839
Speaker 1: businesses to form and to have the ability to essentially

602
00:36:21,239 --> 00:36:26,200
Speaker 1: obliterate the statute of limitations that might otherwise apply because

603
00:36:26,239 --> 00:36:29,520
Speaker 1: they weren't in existence at the time an agency undertook

604
00:36:29,520 --> 00:36:33,759
Speaker 1: an action and reopened again settled rules. It's of a

605
00:36:33,840 --> 00:36:38,000
Speaker 1: piece with another decision handed down this term that was

606
00:36:38,040 --> 00:36:43,440
Speaker 1: decided on Seventh Amendment grounds that Jarchisi decision that holds that,

607
00:36:43,760 --> 00:36:47,560
Speaker 1: at least in the Securities and Exchange Commission context, when

608
00:36:47,600 --> 00:36:53,480
Speaker 1: dealing with civil penalties for fraud, the agencies tribunals cannot

609
00:36:53,480 --> 00:36:57,360
Speaker 1: decide the matter. They have to go to juries in

610
00:36:57,400 --> 00:37:02,400
Speaker 1: the Article three courts. That decision itself, I suspect will

611
00:37:02,440 --> 00:37:05,959
Speaker 1: not be the last word, and we might see other

612
00:37:06,400 --> 00:37:11,160
Speaker 1: agencies internal tribunals in future years needing to go to

613
00:37:11,320 --> 00:37:13,200
Speaker 1: Article three courts. So we're going to have a lot

614
00:37:13,239 --> 00:37:17,120
Speaker 1: more business for the judiciary, and that raises a host

615
00:37:17,120 --> 00:37:20,759
Speaker 1: of institutional capacity questions about whether the courts are going

616
00:37:20,800 --> 00:37:24,120
Speaker 1: to be capable of resolving these matters in a timely

617
00:37:24,280 --> 00:37:26,160
Speaker 1: and informed manner.

618
00:37:26,560 --> 00:37:29,800
Speaker 3: So they're not done dismantly the administrative state yet.

619
00:37:30,440 --> 00:37:33,600
Speaker 1: I think the administrative state is certainly going to be around,

620
00:37:33,640 --> 00:37:36,319
Speaker 1: but it's going to be a different one, and its

621
00:37:36,360 --> 00:37:39,239
Speaker 1: relationship with the courts and the Court's relationship with it

622
00:37:39,640 --> 00:37:43,839
Speaker 1: have definitely shifted, and the US Supreme Court majority here

623
00:37:43,880 --> 00:37:48,480
Speaker 1: has signaled to the rest of government that the old

624
00:37:48,520 --> 00:37:53,840
Speaker 1: ways are over and it wants everybody at the lower

625
00:37:53,840 --> 00:37:57,560
Speaker 1: court level and throughout the agencies to take a more

626
00:37:57,760 --> 00:38:04,000
Speaker 1: skeptical view of administer traitive authority being exercised by agencies

627
00:38:04,000 --> 00:38:07,360
Speaker 1: that have been delegated that authority by Congress, but they

628
00:38:07,400 --> 00:38:10,600
Speaker 1: now are going to be subjected to a much more

629
00:38:10,719 --> 00:38:13,040
Speaker 1: muscular approach by the courts.

630
00:38:13,560 --> 00:38:17,160
Speaker 3: Thanks so much for your insights. That's Professor Carricolinies of

631
00:38:17,200 --> 00:38:20,279
Speaker 3: the University of Pennsylvania Law School, and that's it for

632
00:38:20,280 --> 00:38:22,920
Speaker 3: this edition of the Bloomberg Law Show. Remember you can

633
00:38:22,960 --> 00:38:26,200
Speaker 3: always get the latest legal news on our Bloomberg Law Podcast.

634
00:38:26,480 --> 00:38:29,480
Speaker 3: You can find them on Apple Podcasts, Spotify, and at

635
00:38:29,640 --> 00:38:34,680
Speaker 3: www dot Bloomberg dot com, slash podcast, slash Law, and

636
00:38:34,760 --> 00:38:37,839
Speaker 3: remember to tune into The Bloomberg Law Show every weeknight

637
00:38:37,920 --> 00:38:41,360
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638
00:38:41,400 --> 00:38:42,840
Speaker 3: you're listening to Bloomberg