Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 2: I'm declaring a mistrial in this case.
Speaker 3: Judge Beverly Canon declared a mistrial last week after juror's
Speaker 3: deadlock in the polarizing, high profile case of Karen Reid,
Speaker 3: a woman accused of striking her Boston Police officer boyfriend
Speaker 3: with her SUV and leaving him to die in a snowstorm.
Speaker 3: The trial had lasted two months and featured more than
Speaker 3: six hundred pieces of evidence and more than seventy witnesses,
Speaker 3: but on the fifth day of deliberations, jurors sent the
Speaker 3: judge a note saying they remained at an impass.
Speaker 4: To continue to deliberate would be futile and only serve
Speaker 4: to force us to compromise these deeply held beliefs.
Speaker 2: I'm not going to do that to you, folks. Your
Speaker 2: service is complete, but.
Speaker 3: The case is far from over. Prosecutors say they intend
Speaker 3: to retry. Read defense attorney Out Jackson says the result
Speaker 3: will be the same.
Speaker 4: The Commonwealth did their worst. They brought the way to
Speaker 4: the state based on spurious charges, based on compromised investigation
Speaker 4: and investigators and compromised witnesses. This is what it looks like.
Speaker 4: And guess what they failed. They failed miserably and they'll
Speaker 4: continue to fail.
Speaker 3: Joining me is an expert in criminal law, Daniel Medwebb,
Speaker 3: a professor at Northeastern Law School. For those who have
Speaker 3: not been following this case closely, can you give us
Speaker 3: an overview of the facts.
Speaker 2: So a few years ago, a woman named Karen Reid,
Speaker 2: who's now in her mid forties, was driving her boyfriend
Speaker 2: to a party after a night of bar hopping in
Speaker 2: a town called Kenton, Massachusetts. But it's not really a
Speaker 2: suburb of Boston. It's a little further away than a suburb,
Speaker 2: And so she dropped him off. She'd had quite a
Speaker 2: bit to drink that night, and then essentially he was
Speaker 2: found dead by her and a couple of her friends
Speaker 2: the next morning. And so the initial theory was that
Speaker 2: maybe she dropped him off and while she was doing
Speaker 2: a three point turn to leave, she might have inadvertently
Speaker 2: clipped him or it wortinly, it's sort of a bit
Speaker 2: unclear at first with her car, and because he had
Speaker 2: also been drinking, he fell down. It was a night
Speaker 2: of a snowstorm, and ultimately he died of hypothermia. That
Speaker 2: was sort of the initial kind of impression of the case,
Speaker 2: And at first, I think a lot of people thought
Speaker 2: of this as, you know, potentially an accident, you know,
Speaker 2: a problem of drunk driving and a mistake. Over time,
Speaker 2: it evolved into a lot more. The government indicted Karen
Speaker 2: Reid for not just manslaughter, sort of recklessly causing the
Speaker 2: death of this man. His name is John o'keith. He
Speaker 2: was a Boston Police Department officer who also was taking
Speaker 2: care of his family member's children. So he had a
Speaker 2: lot of really wonderful attributes apparently, so she's charged with
Speaker 2: not just reckless mansdaughter, but also she's indicted on secondary murder,
Speaker 2: and the prosecution had a number of hostile voice messages
Speaker 2: that she had left to O'Keefe, indicating that it was
Speaker 2: a very volatile and strained relationship. Now, over time, the
Speaker 2: defense undercuts the theory a that Karen read had even
Speaker 2: hit John O'Keeffe sort of undercut that theory, and b
Speaker 2: began to develop evidence of an alternative theory that potentially
Speaker 2: John O'Keeffe had gone inside the house where the party
Speaker 2: was an incident had occurred, sort of unclear exactly what
Speaker 2: had transpired, and people at the party had left O'Keefe
Speaker 2: for did outside the house. So, on the one hand,
Speaker 2: you have prosecutors who believe that either again inadvertently or btinly,
Speaker 2: Karen Reid struck and killed her boyfriend while dropping him
Speaker 2: off after a night of drinking and a lot of
Speaker 2: confrontations and volatility in the relationship. The defense theory is
Speaker 2: that she may never at him at all, that the
Speaker 2: police essentially engaged in a sloppy investigation, and there are
Speaker 2: lots of evidence about haphazard techniques used in the investigation,
Speaker 2: and the defense that's made allegations that some evidence was
Speaker 2: planted suggesting that Karen reeve did it and the police
Speaker 2: never investigated this alternative theory, what would.
Speaker 3: Be the reason. So with the defense's alternative theory, what
Speaker 3: was the reason they gave for why O'Keefe's friends would
Speaker 3: have left him for dead outside the house in the
Speaker 3: snow well.
Speaker 2: The defense theory is that there was some bad blood
Speaker 2: between this man, John O'Keefe, the secedent, and some of
Speaker 2: the members at the house party, including the Albert family,
Speaker 2: a guy named Brian Albert who was a Boston Police
Speaker 2: Department detective that that Alberts had had I hate to
Speaker 2: use the term feud because it sort of conjures up
Speaker 2: these sort of small town chiefs, but there had been
Speaker 2: some animosity between the Alberts family and the O'Keefe family.
Speaker 2: In addition, another person at the party, a man named
Speaker 2: Brian Higgins, who was an ATF officer, had apparently exchanged
Speaker 2: some flirtatious text messages with Karen Reid beforehand, so the
Speaker 2: defense sort of alluded to the idea that he had
Speaker 2: a love interest in Karen Reid and maybe had a
Speaker 2: romantic reason to not like John O'Keefe. There are various
Speaker 2: theories that were floated, and the defense obviously struggled to
Speaker 2: substantiate them, in part because the police didn't secure the
Speaker 2: crime scene, they didn't thoroughly investigate the house or search
Speaker 2: the house. According to the defense, there were a lot
Speaker 2: of missteps in the investigation. So that's sort of part
Speaker 2: of it. And it's a situation where you look at
Speaker 2: this case and depending on your theory of the case,
Speaker 2: you can interpret a lot of the evidence in a
Speaker 2: way that supports your theory. For people who think that
Speaker 2: Karen Read did it, a key fact is that she
Speaker 2: allegedly said to some of the emergency responders and to
Speaker 2: her friends when she found John O'Keefe's body, and around
Speaker 2: that time, I hit him. I hit him. I hit him,
Speaker 2: sort of an allusion to the fact that she had
Speaker 2: hit him and there was evidence of a broken tail light.
Speaker 2: And some people will look at that and they say
Speaker 2: that's evidence of her culpability. Other people view it as
Speaker 2: more speculation on her part that she just can't remember
Speaker 2: what happened because she'd been drinking and she's just, you know,
Speaker 2: mentioning this possible horrible situation. Maybe I hit him, Maybe
Speaker 2: I hit him, And that's sort of the defense explanation
Speaker 2: for it. So there are lots of facts, lots of
Speaker 2: twists and turns, and I think it's one of the
Speaker 2: reasons why people have such strong opinions of the case.
Speaker 3: In order to believe the defense, would you have to
Speaker 3: believe that law enforcement planted evidence and engage in a
Speaker 3: cover up and a massive conspiracy.
Speaker 2: You know, I don't know about that. I mean, when
Speaker 2: I look at this case, and I should mention, you know,
Speaker 2: I have nothing to do with the case. I'm not
Speaker 2: part of the defense team, but I am a former
Speaker 2: defense lawyer, and as a former defense lawyer, I often
Speaker 2: think of the defense strategies at trial, and the major
Speaker 2: defense strategy in a lot of cases, of course, is
Speaker 2: reasonable doubt. In order to convict someone of a crime,
Speaker 2: the burden is on the prosecution to prove guilt beyond
Speaker 2: a reasonable doubt. So I don't think it's so much
Speaker 2: that the defense would have to show this massive cover
Speaker 2: up as much as the defense would have to show
Speaker 2: that there's reasonable doubt carrying Reads struck and killed John o'kee. Now,
Speaker 2: I think you're right. The way the case was tried
Speaker 2: and the way social media has sort of grabbed onto
Speaker 2: the case, there's a sense that for you to think
Speaker 2: that carring Mead is innocent, you have to believe in
Speaker 2: this massive cover up. But I'm not so sure. It
Speaker 2: could be that people have lingering doubts about her involvement
Speaker 2: because of a series of facts that just really don't
Speaker 2: add up. So I think it depends. I think it depends.
Speaker 3: The tail light of her SUV was broken and pieces
Speaker 3: of it were found in the snow. It seems indicative
Speaker 3: that something happened there was the defense asking the jury
Speaker 3: to believe that police planted that.
Speaker 2: Yeah, I mean, I think that is part of it, right.
Speaker 2: I think the defense theory certainly was that the police
Speaker 2: were involved in planting evidence, including apparently evidence of a
Speaker 2: hair of John O'Keefe that was damned on the core
Speaker 2: or on the taille or the fragments. I can't call
Speaker 2: exactly what, but there's all this other evidence that maybe
Speaker 2: the jury could believe that doesn't necessarily point to some
Speaker 2: framing or massive cover up, as much as it might
Speaker 2: point to the fact that the police didn't investigate the
Speaker 2: case as thoroughly as possible. So for instance there and
Speaker 2: again I'm not offering any view on this, it's just
Speaker 2: looking at the evidence and sort of speculating about whether
Speaker 2: there was reasonable doubt generated. You know, one issue that
Speaker 2: came up the trial related to John o'keef's injuries, and
Speaker 2: he was found with injuries that may have been inconsistent
Speaker 2: with being struck by a car. There were certain injuries
Speaker 2: to his arm and elsewhere. The defense argued that these
Speaker 2: were dog bites, and that the Albert had a dog,
Speaker 2: and there were all these other allegations. But according to
Speaker 2: the pathologist and some of the medical evidence, there was
Speaker 2: some debate about John o'keith's injuries and whether, in fact
Speaker 2: the car could have caused the injuries alone or whether
Speaker 2: there was something else. You know, I think it is
Speaker 2: interesting what the defense did here and an interesting aspect
Speaker 2: of this. Strategically, the defense could have just focused on
Speaker 2: reasonable death. Here are some of the hold look at
Speaker 2: the injuries. The injuries don't seem entirely consistent with just
Speaker 2: being struck by a car during a three point term.
Speaker 2: There were other pieces of evidence. There was a cloud
Speaker 2: driver who was there later in the night and didn't
Speaker 2: see a body on the lawn. There was evidence that
Speaker 2: maybe someone in the inside the house had conducted a
Speaker 2: Google search how long or how's long to die in
Speaker 2: the snow at about two twenty five, two thirty am,
Speaker 2: before Karen Reid had returned. So there are all these
Speaker 2: little kidbits of information that maybe don't go to police malfeasance,
Speaker 2: but maybe suggest something else happened and the police missed it. So,
Speaker 2: in other words, it's sort of a long way of saying,
Speaker 2: I mean, you can look at this case at the extremes,
Speaker 2: right one extreme the prosecution theory. You know, Karen Reid
Speaker 2: intended to kill John o'kee another extreme, extensive police cover up.
Speaker 2: But for people who aren't inclined to go to the extremes,
Speaker 2: there might be a feeling that it's somewhere in the middle,
Speaker 2: that maybe something bad happened inside the house, really bad,
Speaker 2: and the police didn't do the right investigation to ensure
Speaker 2: that all the suspects were interrogated properly. Or some people
Speaker 2: might think Karen Read mistakenly, recklessly did strike John o'ke,
Speaker 2: and it's more of a tragic accident than some type
Speaker 2: of intentional homicide. But I think the op shot is
Speaker 2: when you look at this evidence, at least from my perspective,
Speaker 2: I wasn't entirely surprised that it was a hung jury
Speaker 2: because of the complexity of the case, because of all
Speaker 2: its evidence cutting both sides. It sort of made sense
Speaker 2: to me that maybe twelve people would struggle to come
Speaker 2: up with unanimous decision.
Speaker 3: Stay with me, Daniel. Coming up next on the Bloomberg
Speaker 3: Lawn Show, I'll continue this conversation with Professor Daniel Medweb
Speaker 3: of Northeastern Law School. How might the prosecution change its
Speaker 3: strategy at a retrial, and later in the show, how
Speaker 3: the Supreme Court's decision reversing the forty year old Chevron
Speaker 3: doctrine is already wreaking havoc at federal agencies. I'm June
Speaker 3: Grosso and you're listening to Bloomberg. A mistrial was declared
Speaker 3: last week after jurors deadlocked in the case of Karen Reid,
Speaker 3: a woman accused of striking her Boston Police officer boyfriend
Speaker 3: with her SUV and leaving him to die in a
Speaker 3: snows Prosecutors say they intend to retry read and a
Speaker 3: hearing is scheduled in the case for July twenty second.
Speaker 3: I've been talking to Professor Daniel Medweb of Northeastern Law School.
Speaker 3: Michael Proctor, the lead investigator for the Commonwealth, has been
Speaker 3: relieved of duty because of serious misconduct that emerged in
Speaker 3: testimony at the trial. Tell me about his testimony.
Speaker 2: So, Michael Practor was the lead investigator, and he's a
Speaker 2: member of the State Police. And one huge benefit of
Speaker 2: getting the state police involved in homicide investigations, especially an
Speaker 2: investigation of the death of a Boston Police Department officer,
Speaker 2: is to sort of avoid conflicts of interest, right you
Speaker 2: have a different agency involved in the investigation. That's one
Speaker 2: of the theories behind it. There are several problems, but
Speaker 2: one was that Michael Procter had these personal relationships with
Speaker 2: some members of the Albert family, people who are at
Speaker 2: the party, that according to the defense, at least, he
Speaker 2: didn't adequately disclose. So they're this sense of potential conflicts
Speaker 2: of interest that sort of swirling around his involvement, and
Speaker 2: that I think has spanned the flames of some of
Speaker 2: the fears about a cover up. That it wasn't just
Speaker 2: an issue of floppy investigation. Some believers in Karen Reid's
Speaker 2: innocence would suggest it was more purposeful and sort of
Speaker 2: malevolence than that. So that's one problem with Michael Pactor,
Speaker 2: just that there was a relationship there that a tangled
Speaker 2: web that may not have been adequately disclosed on the
Speaker 2: front end. A second problem, and the one that really
Speaker 2: made a lot of headlines, is that apparently over the
Speaker 2: course of the investigation, he was exchanging a variety of
Speaker 2: inappropriate text messages with people about the Karen Reid case,
Speaker 2: and he referred to Karen Reid in sort of very
Speaker 2: vulgar and inappropriate terms. He called her a whack job,
Speaker 2: He made fond of her medical condition, He indicated that
Speaker 2: he had been looking for nude photographs and was disappointed
Speaker 2: that he hadn't fanned any nude photographs. You know, for
Speaker 2: this to be revealed publicly in high profile case, you
Speaker 2: obviously really cast dispersions on him as an investigator, of
Speaker 2: his credibility, his professionalism. But it really sort of called
Speaker 2: into question, you know, police propriety in general. If this
Speaker 2: type of behavior occurs in a high profile investigation of
Speaker 2: the death of a Boston police officer, what happens in
Speaker 2: a more run of the milk, What happens behind the
Speaker 2: scenes with the investigation? You know, how are the defendants views,
Speaker 2: how are the victims characterized? Are the eyes dotted and
Speaker 2: the peace crossed? If they weren't all handled well here
Speaker 2: in a case that presumably the police would really have
Speaker 2: an interest in solving accurately, you know what happens in
Speaker 2: every other case. So in some respects, I think the
Speaker 2: Karen Read case is also a little bit of a
Speaker 2: forum on police investigation techniques.
Speaker 3: The jury foreman said the panel was starkly divided. Our
Speaker 3: perspectives on the evidence are starkly divided. The deep division
Speaker 3: is not due to a lack of effort or diligence,
Speaker 3: but rather a sincere adherence to our individual principles and
Speaker 3: moral convictions. So this wasn't a case of like one
Speaker 3: holdout juror Yes.
Speaker 2: So in Massachusetts, you can't necessarily figure out as a
Speaker 2: matter of law, you know what the breakdown was. Over time,
Speaker 2: I imagine we will get a sense of it, just
Speaker 2: because jurors will tell people about what the breakdown was.
Speaker 2: But the implication from the language, the use of plural
Speaker 2: and there is an implication it wasn't necessarily one hold out.
Speaker 2: We don't know how many. We don't know whether it
Speaker 2: was a total split. We don't know whether the jury
Speaker 2: was tilted on one side or the other. But there
Speaker 2: is a sense. I think you're right that there was
Speaker 2: a deep division, a deeply held division in the jury,
Speaker 2: which again is an entirely surprising given the deep division
Speaker 2: in the community in that particular county. When thinking about
Speaker 2: this case and thinking about the evidence, the.
Speaker 3: District attorney's office said it plans to retry the case.
Speaker 3: Do you see a way that it can avoid made
Speaker 3: any of the mistakes or defense arguments that happened in
Speaker 3: the first trial.
Speaker 2: I do. I think it's an interesting calculation. I think
Speaker 2: it's natural that the DA would announce that they plan
Speaker 2: to try the case I immediate aftermath. That's sort of
Speaker 2: a natural reaction. So I would be surprised if the
Speaker 2: prosecutor simply said justice would serve and we're moving on.
Speaker 2: They obviously are vested in the belief that Karen Read
Speaker 2: is guilty. They got these indictments, which means that at
Speaker 2: least the grand jury fan there was probable cause for
Speaker 2: these charges, and they believe, presumably that there is proof
Speaker 2: beyond reasonable doubt that the cheese fact guilty. So it's
Speaker 2: not surprising that they said that. As to whether at
Speaker 2: the end of the day they will actually proceed with
Speaker 2: the retrial is a more complicated and nuanced decision because
Speaker 2: you have to think about whether the result would be different.
Speaker 2: As you point out, are there ways for the prosecution
Speaker 2: to sort of mitigate some of the defense arguments or
Speaker 2: overcome some of the defense arguments, or are there some
Speaker 2: intrinsic obstacles here the likely result will be similar, So
Speaker 2: we can kind of think that through. I mean, now
Speaker 2: the prosecution has a sense of what the defense theory is,
Speaker 2: so it does allow them, and they have a year
Speaker 2: after the formal retrial is ordered, there's going to be
Speaker 2: a status confemplator this month. Let's say that prosecution reasserts
Speaker 2: that it plans to retry is Read, and then they
Speaker 2: would have one year for the trial to start from
Speaker 2: that date. Over the course of that time, they might
Speaker 2: investigate further. They might think through some of the defense
Speaker 2: arguments and come up with ways to counteract them. But
Speaker 2: there are some intrinsic kurdles here that may be difficult
Speaker 2: to overcome. One and we talked about this a moment ago,
Speaker 2: is Michael factor. He was the lead investigator, and I
Speaker 2: don't know how he is kept out of this case,
Speaker 2: how those text messages are kept out, even if the
Speaker 2: defense sort of brings it in. Other intrinsic problems the
Speaker 2: injuries on John O'Keefe and some of the evidence that
Speaker 2: suggests that maybe it wasn't consistent with just being struck
Speaker 2: by the core evidence about that Google search and the
Speaker 2: timing of that Google search, and there's all sorts of
Speaker 2: other evidence that sort of complicates the case for the prosecution.
Speaker 2: Some of it maybe can be overcome with better forensic
Speaker 2: experts than they had before or other strategies, but a
Speaker 2: really important question that I imagine the das are asking themselves
Speaker 2: right now, is can we prove this case beyond a
Speaker 2: reasonable doubt given some of these inherent obstacles, some of
Speaker 2: which are related to how the investigation preceded, sort of
Speaker 2: some of these sloppy steps taken in the investigation.
Speaker 3: Do you think this is a case of a very
Speaker 3: good defense lawyer? Was it more the strategy in other words,
Speaker 3: and the way the defense lawyer approached it, maybe another
Speaker 3: lawyer wouldn't have been able to do as well.
Speaker 2: That's possible. That's possible. I think she had a good
Speaker 2: defense team that did a very good job of investigating
Speaker 2: the case and cross examining the witness. I think that's,
Speaker 2: I mean, major part of this. Undoubtedly it also is
Speaker 2: and I often say this to my students. What's amazing
Speaker 2: about trials is we often think about them as sorting
Speaker 2: mechanisms between guilt and innocence, but really it's a sorting
Speaker 2: mechanism between guilt and not guilty. And the idea is,
Speaker 2: if there is reasonable doubt about somebody's culpability, the jury
Speaker 2: must acquit. And here the jury was conflicted about that.
Speaker 2: Some jurors believe she was guilty beyond reasonable doubt. Others didn't.
Speaker 2: So I think the defense did a very good job
Speaker 2: of raising reasonable doubt, in part by alluding to innocence
Speaker 2: by suggesting that it was a framing. But other lawyers
Speaker 2: might have taken a strategy of just showing reasonable doubt,
Speaker 2: just poking holes in the investigation, just poking holes in
Speaker 2: the prosecution theory, without necessarily casting dispersions on the government,
Speaker 2: so to speak. So I'm not so sure whether it
Speaker 2: was an issue of very effective defense advocacy or also
Speaker 2: an issue of the truth is often gray. It's not
Speaker 2: always black and white. We can't always see it with
Speaker 2: perfect clarity, and sometimes that grayness reflects the ambiguities of
Speaker 2: the facts, and those ambiguities are sometimes enhanced by what
Speaker 2: the police did or did not do. So I think
Speaker 2: what's very interesting for the prosecution right now is, even
Speaker 2: if they can course correct, is this going to be
Speaker 2: a wise use of government resources to retry her? And
Speaker 2: if they retry her, does it make sense to focus
Speaker 2: on that second degree murder charge, the intentional murder charge,
Speaker 2: which felt like a stretch, even though there was some
Speaker 2: evidence suggesting there was a lot of hostility in the relationship,
Speaker 2: and some very nasty voicemail messages that Karen Reid had
Speaker 2: left for John O'Keefe. You might prosecutors choose to just
Speaker 2: focus on the drunk driving homicide charge, the manslaughter charge,
Speaker 2: and make it more about an abhorrent accident. I don't know.
Speaker 2: These are all things that they're going to think about
Speaker 2: the month.
Speaker 3: Do you think that a plea deal is possible?
Speaker 2: So let's just sort of reverse engineers. Assuming the prosecution
Speaker 2: continues to believe in the merits of this prosecution, They
Speaker 2: believe Karen Reid is guilty, they believe justice would be
Speaker 2: served by pursuing it. Let's just assume that her purposes
Speaker 2: of argument, then they're thinking, well, perhaps given some of
Speaker 2: the obstacles in the case, it would make sense to
Speaker 2: offer a plea. If so, the question becomes, you know,
Speaker 2: what type of plea deal do they offer? Do they
Speaker 2: offer manslaughter, do they just offer leaving the scene of
Speaker 2: the crime, do they just offer driving under the influence?
Speaker 2: I mean, what do they offer? It appears as though
Speaker 2: everything that the defense has said about the case publicly,
Speaker 2: I very much doubt that Karen Reid would be interested
Speaker 2: in a plea deal that accepts responsibility for the death right.
Speaker 2: I mean, she might agree that she drove while drinking
Speaker 2: that night, and she might accept a deal to that
Speaker 2: think that acknowledges their culpability for the death Unless the
Speaker 2: defense really changes its tune, I don't think they would
Speaker 2: accept it. So the viability of the plea offer is
Speaker 2: contingtion not just on whether the prosecution would offer it,
Speaker 2: but what the defense would accept it. So I imagine the
Speaker 2: prosecution of courses thinking about a plea deal as a
Speaker 2: way to, in their view, achieve justice their vision of justice.
Speaker 2: But I bet from the defense perspective they would hold out.
Speaker 2: And the mistrial is pretty good evidence that what they
Speaker 2: did the first time around you may have legs and
Speaker 2: work again.
Speaker 3: I assume we're going to find out a lot more
Speaker 3: at the next court session, which is scheduled for July
Speaker 3: twenty second. Thanks so much, Daniel. That's Daniel Medweb, a
Speaker 3: professor at Northeastern Law School. Coming up next on the
Speaker 3: Bloomberg Wall Show. The Supreme Court throwing out the forty
Speaker 3: year old Chevron doctrine is already wreaking havoc on federal
Speaker 3: agency rules in areas like education, healthcare, and employment. I'm
Speaker 3: June Grosso, and you're listening to Bloomberg. In one of
Speaker 3: the most watched decisions this term, the Supreme Court eliminated
Speaker 3: a forty year old precedent known as Chevron deference, a
Speaker 3: doctrine that empowered federal regulators to interpret unclear laws. The
Speaker 3: six to three decision down ideological lines takes power away
Speaker 3: from executive branch agencies that enforce all kinds of rules
Speaker 3: in areas from the environment and finance to education and healthcare.
Speaker 3: The Chevron doctrine was a long time target of conservatives
Speaker 3: unhappy with the rule making power of executive branch agencies,
Speaker 3: and it took less than a week for lower federal
Speaker 3: courts to start barring agencies from enforcing Biden administration rules.
Speaker 3: The rules prohibiting transgender discrimination in healthcare and public schools
Speaker 3: were among the first to be targeted. Joining me is
Speaker 3: an expert in administrative law. Carrie Cooliniesie, a professor at
Speaker 3: the University of Pennsylvania Law School. I want to start
Speaker 3: with the odd question your reaction to the Supreme Court's
Speaker 3: decision eliminating the Chevron doctrine.
Speaker 1: Well, we knew that the Court or at least a
Speaker 1: good number of justices on the Court were critical of
Speaker 1: the Chevron decisions, So in some sense it's not terribly surprising,
Speaker 1: But in another sense it is quite dramatic, because, first
Speaker 1: of all, the Supreme Court seldom overturns any of its decisions.
Speaker 1: That's a rare event. But also in this case, this
Speaker 1: had been a decision that was one of the most
Speaker 1: widely cited of all Supreme Court decisions, and certainly one
Speaker 1: of the most widely cited in the administrative law world,
Speaker 1: that area of law that governs the operation of government agencies.
Speaker 1: So there's a real potential for a lot of mischief
Speaker 1: and confusion and further contestation when the Court overturns the
Speaker 1: decision that's been so widely cited like this one.
Speaker 3: Federal district courts already are making moves on this, so
Speaker 3: district courts in Mississippi, Florida, and Texas all barred the
Speaker 3: Department of Health and Human Services from enforcing a rule
Speaker 3: that prohibits healthcare discrimination against people based on their sexual
Speaker 3: orientation or gender identity under the Affordable Care Act. Are
Speaker 3: you surprised that this is happening so quickly?
Speaker 1: Not really. First of all, you know, there are many
Speaker 1: district court judges that have I think an affinity with
Speaker 1: the majority on the Supreme Court in their skepticism toward
Speaker 1: administrative agencies and the exercise of authority by administrative agencies,
Speaker 1: and certainly on some of these hot button kinds of
Speaker 1: issues today in American culture wars. The lower courts have
Speaker 1: been caught up in these kinds of matters even before
Speaker 1: the Supreme Court overturned Chevron, So that's not terribly surprising.
Speaker 1: On the other hand, it is also the case that
Speaker 1: the Supreme Court has sent a very strong signal to
Speaker 1: lower court judges to take on administrative agencies, to embrace
Speaker 1: your skepticism and assert your power over these agencies. That
Speaker 1: is I think the dramatic symbolic import of the Court's
Speaker 1: decision in the lower Bright Enterprises case that overturned Chevron.
Speaker 3: So, in those three cases, it turned on the agency's
Speaker 3: interpretation of the word sex under the Affordable Care Act
Speaker 3: in Title nine. So are these judges then substituting their
Speaker 3: own interpretation of what the word means for the agency?
Speaker 3: And I mean, how are they coming up with this?
Speaker 1: Well, that's what the Supreme Court has told lower court judges.
Speaker 1: Their responsibility is to find the one and only one
Speaker 1: best meaning of a statute based upon the judge's own
Speaker 1: sense of what the statute should mean, not giving the
Speaker 1: kind of deference that the agency would have been afforded
Speaker 1: in the past under the Chevron doctrine.
Speaker 3: Is it only when statutes are ambiguous that this is
Speaker 3: supposed to be the interpretation?
Speaker 1: Well, that was the framework under Chevron, was to first
Speaker 1: ask whether the statute was ambiguous. Because let's be clear
Speaker 1: about clarity. When statutes are not ambiguous, courts need to
Speaker 1: follow them, agencies need to follow them, and courts need
Speaker 1: to make sure agencies are following them. That was always
Speaker 1: true under the Chevron doctrine. The Chevron doctrine came into
Speaker 1: play when statutes were ambiguous. What does sex mean? A
Speaker 1: statute could mean gender, It could mean anything related to gender,
Speaker 1: you know. It could be narrow, it could be broad,
Speaker 1: And that ambiguity under Chevron would have often been seen
Speaker 1: as justifying an inquiry into whether the agency had been
Speaker 1: delegated the authority to make the call about what that
Speaker 1: ambiguous form or term meant, and as long as the
Speaker 1: agency was reasonable, courts were obligated to go with what
Speaker 1: the agency held. That's now changed, and in the face
Speaker 1: of ambiguity, the obligation of the lower court is to
Speaker 1: substitute its own decision, and maybe it will agree with
Speaker 1: the agency, maybe it won't. It certainly should listen to
Speaker 1: and gear the argument from the agency, but it doesn't
Speaker 1: have to follow it in the same way that it
Speaker 1: was supposed to under the Chevron doctrine.
Speaker 3: Does the agency argument get any kind of weight outside
Speaker 3: of you know, any litigant coming up and arguing a case.
Speaker 3: Is there any more weight at all to an agency's interpretation?
Speaker 1: Well, not really, although it's also not entirely clear what
Speaker 1: the Supreme Court majority thinks should be given. You know,
Speaker 1: there are passages in the lower Bright decision that say,
Speaker 1: first of all, the agency should have its interpretation be
Speaker 1: treated with respectful consideration. It may well have the power
Speaker 1: to persuade the court under an older decision called Skidmore.
Speaker 1: And it's also possible if you could read some passages
Speaker 1: in the Loco Bright decision where the Supreme Court majority
Speaker 1: has recognized that there may be evidence that Congress actually
Speaker 1: intended to delegate to the agency the decision about what
Speaker 1: the statute means. So in all of those situations, the
Speaker 1: agency's interpretation will have some weight, but it won't have
Speaker 1: the same kind of weight that it would have under
Speaker 1: the Chevron doctrine.
Speaker 3: The district courts that I mentioned were all conservative. So
Speaker 3: what happens if the same issue comes up in a
Speaker 3: different district court, let's say in New York or California,
Speaker 3: and the court has a different interpretation of what the
Speaker 3: word sex means. What happens? Then?
Speaker 1: Yeah, we're going to end up with a situation where
Speaker 1: we have competing judges, each giving their own best interpretation
Speaker 1: of the statute and within their districts or if it's
Speaker 1: at the Court of Appeals level, within their circuits, there
Speaker 1: will be competing definitions. Maybe the Supreme Court will step
Speaker 1: in and resolve some of these, but the Supreme Court
Speaker 1: only here's what sixty or seventy or so cases per year,
Speaker 1: So we're going to be living with I think a
Speaker 1: lot more flux and conflict, and maybe one might even
Speaker 1: say chaos in the law as these different judges reach
Speaker 1: potentially different interpretations on their own accord following the Lower
Speaker 1: Bright decision.
Speaker 3: So this reminds me of what happened after the Dobs
Speaker 3: case with abortion, where there's just chaos. I mean, didn't
Speaker 3: the Supreme Court look at this and say, Wow, if
Speaker 3: we do this, there's going to be chaos.
Speaker 1: One thing to be keep in mind in this case
Speaker 1: is that even under the Chevron there was the possibility
Speaker 1: that different judges would find statutes to be clear and
Speaker 1: other judges found them to be ambiguous. So statutory interpretation
Speaker 1: has always been messy, and some messiness was to always
Speaker 1: be expected. I think what's different now is that judges
Speaker 1: aren't even being told to make decisions that accord deference
Speaker 1: to agencies, and in situations of ambiguity, they're not even
Speaker 1: being told that there should be some effort to try
Speaker 1: to think about creating a uniformed decision across the country
Speaker 1: by going with the agency in cases of statutory ties.
Speaker 1: And the other thing to note is that these court decisions,
Speaker 1: because they'll be based upon now ostensibly the judge's own
Speaker 1: best interpretations of statutes, will get presidential effect in a
Speaker 1: way that agency decisions actually under the Chevron doctrine didn't
Speaker 1: have quite the same strong presidential effect. What I mean
Speaker 1: by that is that under the Chevron doctrine, if the
Speaker 1: court found that the statute was ambiguous, and then the
Speaker 1: tie went to the agency as long as the agency's
Speaker 1: interpretation was reasonable. Well, there was still room for the
Speaker 1: agency at some later time to adapt or change its
Speaker 1: understanding of the statute as long as that new meaning
Speaker 1: was reasonable as well. And that won't be the case
Speaker 1: with the new regime, because once the terms and meaning
Speaker 1: of the statute is fixed by a court, it takes
Speaker 1: on that strong presidential meaning and will have a much
Speaker 1: less adaptive and responsive laws. So in some sense we'll
Speaker 1: have more chaos and messiness I suspect, but also some
Speaker 1: more rigidity as well.
Speaker 3: In the Supreme Court decision, the opinion mentioned story decisives
Speaker 3: more than thirty five times or something. What role does
Speaker 3: story decisives play here?
Speaker 1: Well, that's also a point of potential okaots from this decision.
Speaker 1: Because Chevron had been so widely cited, new questions now
Speaker 1: are arising about what is the status of old agency
Speaker 1: interpretations that had been previously litigated and upheld under the
Speaker 1: Chevron doctrine. The Court did anticipate this issue to some degree,
Speaker 1: but it addressed it only in a very brief section
Speaker 1: of its opinion, and in a way that isn't quite
Speaker 1: crystal clear itself and will only I think, breed further
Speaker 1: confusion and lesser until the court steps in and tries
Speaker 1: to clarify things. But in brief, the court said that
Speaker 1: prior agency actions, actually specific agency actions that had been
Speaker 1: undertaken under a position or an interpretation approved under the
Speaker 1: Chevron doctrine, those specific agency actions could not be overtre
Speaker 1: earned just because the court was overturning Chevron. But there's
Speaker 1: a whole host of ambiguities and questions about what all
Speaker 1: that means. So it probably means that if somebody has
Speaker 1: a permit or a license, or been the beneficiary of
Speaker 1: some immigration decision in the past that was handed down
Speaker 1: under a policy approved by courts under the Chevron doctor,
Speaker 1: that those specific actions can't be overturned. But it doesn't
Speaker 1: mean necessarily that the prior statutory interpretations can't be challenged
Speaker 1: in new permit denials or licensed denials or adverse immigration
Speaker 1: decisions that might come up. So you're likely to see
Speaker 1: old interpretations now that had seemingly been settled law, sometimes
Speaker 1: perhaps for years or not decades, being reopened and revisited.
Speaker 3: I keep hearing about the terrible effects this decision is
Speaker 3: going to have on the EPA one agency more than another,
Speaker 3: or is it just across the board.
Speaker 1: This is a decision that affect the agencies across the
Speaker 1: entire federal government. All agencies are creatures of statutes. Congress
Speaker 1: creates them by statute, empowers them by statutes, and they
Speaker 1: have to operate within the confines of statutes. So all
Speaker 1: of these issues about statutory interpretation and who gets to
Speaker 1: decide questions of statutory interpretation, courts or agencies, those are
Speaker 1: really inherent throughout our modern form of government.
Speaker 3: So is this the Court taking more power for the courts?
Speaker 1: Yeah, this is of a piece with other decisions that
Speaker 1: are making the Court a more central player within modern government,
Speaker 1: probably more central than it's been for at least fifty years,
Speaker 1: if not more. The overturning of Chevron means that the
Speaker 1: Court must decide questions of dettutory interpretation and agencies don't
Speaker 1: merit anything more than perhaps respectful consideration. But it's also
Speaker 1: something to combine with another decision that the Court handed
Speaker 1: down at the end of the term that allows new
Speaker 1: businesses to form and to have the ability to essentially
Speaker 1: obliterate the statute of limitations that might otherwise apply because
Speaker 1: they weren't in existence at the time an agency undertook
Speaker 1: an action and reopened again settled rules. It's of a
Speaker 1: piece with another decision handed down this term that was
Speaker 1: decided on Seventh Amendment grounds that Jarchisi decision that holds that,
Speaker 1: at least in the Securities and Exchange Commission context, when
Speaker 1: dealing with civil penalties for fraud, the agencies tribunals cannot
Speaker 1: decide the matter. They have to go to juries in
Speaker 1: the Article three courts. That decision itself, I suspect will
Speaker 1: not be the last word, and we might see other
Speaker 1: agencies internal tribunals in future years needing to go to
Speaker 1: Article three courts. So we're going to have a lot
Speaker 1: more business for the judiciary, and that raises a host
Speaker 1: of institutional capacity questions about whether the courts are going
Speaker 1: to be capable of resolving these matters in a timely
Speaker 1: and informed manner.
Speaker 3: So they're not done dismantly the administrative state yet.
Speaker 1: I think the administrative state is certainly going to be around,
Speaker 1: but it's going to be a different one, and its
Speaker 1: relationship with the courts and the Court's relationship with it
Speaker 1: have definitely shifted, and the US Supreme Court majority here
Speaker 1: has signaled to the rest of government that the old
Speaker 1: ways are over and it wants everybody at the lower
Speaker 1: court level and throughout the agencies to take a more
Speaker 1: skeptical view of administer traitive authority being exercised by agencies
Speaker 1: that have been delegated that authority by Congress, but they
Speaker 1: now are going to be subjected to a much more
Speaker 1: muscular approach by the courts.
Speaker 3: Thanks so much for your insights. That's Professor Carricolinies of
Speaker 3: the University of Pennsylvania Law School, and that's it for
Speaker 3: this edition of the Bloomberg Law Show. Remember you can
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