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

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Speaker 1: I wasn't sure that this day would ever come, and

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Speaker 1: I just feel so grateful that the jury believed us

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Speaker 1: and sent a strong message that's perpetrators of sexual abuse

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Speaker 1: and exploitation will be held accountable, no matter how much

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Speaker 1: power and privilege that they have. That was Annie Farmer

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Speaker 1: after a jury found Gallaine Maxwell guilty of sex trafficking

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Speaker 1: underage girls with Jeffrey Epstein. But now that verdict is

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Speaker 1: in jeopardy because a juror did not disclose a history

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Speaker 1: of childhood sex abuse during jury selection, but then in

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Speaker 1: several newspaper interviews after the verdict, said that he used

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Speaker 1: his history to convince fellow jurors to convict Maxwell. That

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Speaker 1: juror went from the jury box to the witness stan

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Speaker 1: this week in adhering to decide whether Maxwell should get

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Speaker 1: a new trial. My guest is former federal prosecutor Jessica Roth,

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Speaker 1: a professor at Cardozo Law School. So Jessica during number

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Speaker 1: fifty testified that he didn't lie deliberately when he answered

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Speaker 1: no to question forty eight on the juror questionnaire, which asked,

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Speaker 1: have you or a friend or family member ever been

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Speaker 1: the victim of sexual harassment, sexual abuse, or sexual assault.

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Speaker 1: He said he was distracted by thoughts of a recent breakup.

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Speaker 1: How does that explanation strike you well? As I understand,

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Speaker 1: if he also said that he was late in the

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Speaker 1: day and it was an honest mistake, and as the

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Speaker 1: government argued in its brief opposing the motion for a

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Speaker 1: new trial, this was a lengthy questionnaire. This was, I believe,

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Speaker 1: towards the end, and it was one of multiple subparts.

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Speaker 1: It's really going to come down to whether the judge

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Speaker 1: found him credible, and whether the judge believes his testimony

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Speaker 1: that he was not intentionally withholding that information but failed

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Speaker 1: to appreciate that the question was calling for an answer

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Speaker 1: with respect to his own history, or even to appreciate

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Speaker 1: what the question was calling for at all because he

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Speaker 1: was tired or distracted. Maxwell's lawyers argue that they didn't

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Speaker 1: have the ability to question him about possible bias, and

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Speaker 1: that they would have tried to get him dismissed. So,

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Speaker 1: no matter if he did it unintentionally or intentionally, isn't

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Speaker 1: this the kind of juror that the defense should get

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Speaker 1: a chance to knock off the jury. Well, if he

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Speaker 1: had answered yes to these questions that disclosed his relevant

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Speaker 1: own history of sexual abuse, there would have been follow

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Speaker 1: up questions for him, as there were for other perspective

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Speaker 1: jurors who disclosed that they had also been the victims

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Speaker 1: of sexual abuse. There were other such prospective jurors, and

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Speaker 1: when they disclosed that information, they were asked additional questions

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Speaker 1: to inquire into whether they could be staring i partial

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Speaker 1: jurs in the case. So, if this juror had given

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Speaker 1: a similar response of yes disclosing his own history of

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Speaker 1: sexual abuse, those very same questions would have been asked.

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Speaker 1: But it's not conclusive of the motion before the court.

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Speaker 1: The court would also have to decide whether or not

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Speaker 1: he could have nevertheless, have been a fair and impartial juror.

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Speaker 1: The very inquiry that the court would have engaged in

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Speaker 1: upon his disclosure of this information, and that was the

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Speaker 1: kind of information that court was trying to elicit at

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Speaker 1: the hearing on the motion for a new trial, which

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Speaker 1: was essentially to ask the follow up questions and to

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Speaker 1: try to get at the very same inquiry the court

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Speaker 1: would have been engaged in during the vod gear process.

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Speaker 1: Had he answered the questions in the affirmative the first

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Speaker 1: time around. He swore multiple times that his experience did

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Speaker 1: not affect his ability to judge Maxwell's case impartially. But

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Speaker 1: isn't it apparent that his past abuse made a difference

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Speaker 1: because he essentially said it did. He told several media

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Speaker 1: outlets that he raised his childhood abuse during deliberations to

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Speaker 1: sway other jurors who doubted the testimony of some of

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Speaker 1: the government's witnesses against Maxwell. So don't his statements to

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Speaker 1: the media dis prove what he said on the stand. Well.

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Speaker 1: One of the challenges that the Court bases in deciding

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Speaker 1: this motion is that the Court is precluded from considering

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Speaker 1: any statements or other information about what was said during

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Speaker 1: the jury deliberations in deciding the motion. So, even though

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Speaker 1: it's been reported in the media what he said during

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Speaker 1: the deliberations referencing his own history of sexual abuse, those statements,

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Speaker 1: anything about what happened in the jury room cannot be

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Speaker 1: part of the Court's inquiry at this juncture, and so instead,

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Speaker 1: what the Court is focused on is what is the

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Speaker 1: nature of his history with sexual abuse? Is there anything

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Speaker 1: about the particulars of his abuse or about essentially how

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Speaker 1: he has processed and reacted to it, as evidenced by

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Speaker 1: how he responded during the word year process. Is there

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Speaker 1: anything about all of that that would suggest that he

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Speaker 1: was not a fair and impartial juror, though the court

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Speaker 1: is really cabin in terms of what it can consider

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Speaker 1: in deciding whether he is a juror who would have

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Speaker 1: been rock for cause because of concerns about him being

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Speaker 1: fair and impartial, the juror had told the court that

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Speaker 1: he wouldn't testify at the hearing unless he got immunity.

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Speaker 1: Can you draw any inferences from that? I think that

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Speaker 1: that is just the product of him and his lawyer

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Speaker 1: recognizing that he had potential criminal exposure based on the

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Speaker 1: fact that he had given answers under oath during the

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Speaker 1: voyader process that he has subsequently realized were not true,

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Speaker 1: and so there was the possibility of exposure for perjury,

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Speaker 1: and so he said, through his lawyer, he would have

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Speaker 1: start his Sistmendment right against self incrimination, and to overcome

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Speaker 1: that assertion of the privilege, the government needed to grant

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Speaker 1: him immunity, effectively saying we will not use your testimony

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Speaker 1: here in this hearing against you. In an subsequent criminal prosecution.

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Speaker 1: So I don't think we can infer anything from the

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Speaker 1: fact that he took the fifth and was granted immunity

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Speaker 1: other than the fact that he recognized there was the

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Speaker 1: possibility of criminal exposure based on his statements during the

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Speaker 1: dear process under oath. So what is the standard that

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Speaker 1: the judge will use to try to decide whether or

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Speaker 1: not to grant a new trial. The ultimate standard is

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Speaker 1: whether or not the judge is satisfied that this is

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Speaker 1: a juror who was able to be fair and impartial.

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Speaker 1: In this case, the defense is pointing to the facts

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Speaker 1: of his abuse and the fact that he did not

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Speaker 1: disclose them as evidence of the fact that he was

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Speaker 1: biased and could not be fair. I think the defense

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Speaker 1: and its briefing also pointed to the fact that he

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Speaker 1: had given interviews to be sort of speaking out the limelight,

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Speaker 1: is suggesting that he was biased and against mis maxwell,

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Speaker 1: as well as some statements he made to the media

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Speaker 1: about how this is essentially a win for victims everywhere,

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Speaker 1: as again suggesting bias. The government is pointing to the

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Speaker 1: fact that this was a split verdict. It was not

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Speaker 1: a guilty verdict on all accounts, which suggests that he,

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Speaker 1: as well as all the other jurors, were careful and

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Speaker 1: discerning about the evidence, and that the verdict was not

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Speaker 1: the product of biased on his parts. They've also pointed

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Speaker 1: to some of his other statements to the media about

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Speaker 1: how careful he was with respect to reviewing the evidence,

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Speaker 1: and that he went in with an open mind and

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Speaker 1: somewhat skeptical in fact, and presumed this maxwell in a sense,

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Speaker 1: until proven guilty. So it's really going to come down

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Speaker 1: to the judge's assessment of whether or not this was

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Speaker 1: a juror who was capable of being fair and impartial.

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Speaker 1: If he had been asked the kinds of questions during

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Speaker 1: the Vardier process that he was asked that this hearing,

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Speaker 1: would the judge have excused him? Those are fundamentally the

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Speaker 1: questions the court is going to be struggling with. If

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Speaker 1: the court determined that he lied intentionally in order to

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Speaker 1: get on the jury, that's going to be a factor

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Speaker 1: that's going to weigh heavily, I think toward a finding

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Speaker 1: that he is not or was not fair and impartial.

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Speaker 1: If the court determines that it was inadvertent, that would

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Speaker 1: be a factor that would be significant in determining that

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Speaker 1: he could have been and was fair and impartial. So

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Speaker 1: whether he lied or not would just be one factor

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Speaker 1: among many. It wouldn't be determinative. Well, the parties are

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Speaker 1: actually in disagreement about that. You see their brief. The

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Speaker 1: government is saying that it's actually a prerequisite that the

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Speaker 1: court firm and that he lied intentionally under its reading

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Speaker 1: of the relevant precedents in the Second Circuit. The defense

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Speaker 1: takes a different view of those precedents and says that

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Speaker 1: it's not a prerequisite that he have intentionally lied, but

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Speaker 1: that effectively that's one factor. And so the court is,

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Speaker 1: i think, as a threshold matter, perhaps going to have

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Speaker 1: to resolve that question. If the court finds that he lied,

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Speaker 1: perhaps the court won't have to reach that question necessarily.

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Speaker 1: I think really the court will only have to decide

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Speaker 1: if the court finds that he did not intentionally lie.

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Speaker 1: Because in that case, if the government is correct and

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Speaker 1: its reading of the precedent that it is a prerequisite

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Speaker 1: that he has lied, right, then the court wouldn't go

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Speaker 1: further in its inquiry. Does the judge consider at all

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Speaker 1: the fact that the victims would have to testify again

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Speaker 1: at a new trial and the length of time it

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Speaker 1: took to try maxwell are those considerations. They're not considerations

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Speaker 1: in an immediate sense. They're not part of the legal

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Speaker 1: standard that the court is going to be applying here,

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Speaker 1: which is much more specific to whether or not the

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Speaker 1: juror was fair and impartial. But in a sense, considerations

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Speaker 1: about the impact on witnesses and concerns about finality are

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Speaker 1: essentially baked into the overall standards that courts apply when

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Speaker 1: considering motions for a new trial. Motions for a new

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Speaker 1: trial are disfavored in part because of the disruption to

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Speaker 1: victims lives and witnesses lives the idea that they would

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Speaker 1: have to testify again, and so courts are instructed generally

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Speaker 1: under the standards governing motions for a new trial that

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Speaker 1: they should only be green when there's essentially a manifest injustice.

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Speaker 1: But then when we get to the specifics of the

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Speaker 1: rationale for emotion for a new trial being based on

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Speaker 1: a juror who gave false statements during war a dear,

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Speaker 1: then in a sense we get a much more specific

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Speaker 1: standard that's really focused on whether the juror was fair

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Speaker 1: and impartial. Would you be surprised if the judge granted

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Speaker 1: a new trial. It happened so rarely, it does happen

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Speaker 1: so rarely. Not having been in the courtroom, it's hard

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Speaker 1: to get a feel or what the witness's demeanor was

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Speaker 1: like and answering these questions, I think a lot is

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Speaker 1: going to turn on the judge's evaluation of the witness's

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Speaker 1: credibility in answering these questions about why he did not

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Speaker 1: give statements that were true, because whether it's despositive or not,

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Speaker 1: whether or not he intentionally lied, it's certainly going to

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Speaker 1: be a very heavy factor. If the court finds that

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Speaker 1: he lied, that would tend to suggest more a motivation

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Speaker 1: on his part to try to get on the jury,

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Speaker 1: and that in turn suggests more of a bias towards

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Speaker 1: the defendants, and therefore that he would not have been

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Speaker 1: Sara and impartial. Thanks for being on the show, Jessica.

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Speaker 1: That's former federal prosecutor Jessica Roth, a professor at Cardozo

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Speaker 1: Law School. The Supreme Court handed down two decisions involving

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Speaker 1: state secrets. The court reversed a win for the First

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Speaker 1: War on Terror detainee Zubda, saying the government doesn't have

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Speaker 1: to turn over information about a LED CIA black sides

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Speaker 1: in Poland because doing so would harm national security. In

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Speaker 1: ruling for the government, the Justice has affirmed a sweeping

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Speaker 1: assertion of the so called state secrets privilege that allows

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Speaker 1: the US to continue to stay mum about the existence

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Speaker 1: of black sites abroad, even though the information is widely known.

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Speaker 1: And the Supreme Court ruled in favor of the government

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Speaker 1: in its effort to limit disclosure of the surveillance of

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Speaker 1: Muslim communities in southern California. In a unanimous ruling by

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Speaker 1: Justice Samuel Alito, the Court said that the U. S.

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Speaker 1: Court of Appeals for the Ninth Circuit got it wrong

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Speaker 1: when it said that the state secrets privilege used to

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Speaker 1: block information the government deems harmful to national security, is

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Speaker 1: totally displaced by the Foreign Intelligence Surveillance Acts procedures. Joining

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Speaker 1: me as former federal Prosecutor George Newhouse of Richard's Carrington, So,

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Speaker 1: George tell us about the case involving the FBI. So

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Speaker 1: it was a unanimous nine and no decision involving a

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Speaker 1: case where the FBI FBI versus Fuzzaga, which, again, as

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Speaker 1: you correctly point out, the second decision in two days

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Speaker 1: dealing with this state secrets doctrine, something I might add

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Speaker 1: that we rarely, very rarely see, particularly in the criminal world,

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Speaker 1: because if it's a state secret, the government protects the

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Speaker 1: secrets first of all by not bringing the case. So

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Speaker 1: in Zubaya, that was a civil case brought by someone

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Speaker 1: who had been subjected to shall we say, enhanced interrogation techniques,

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Speaker 1: some call that torture. UM. So he said, I have

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Speaker 1: a claim against the United States for torturing me, and

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Speaker 1: he filed a lawsuit, and the government said, well, we

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Speaker 1: can't really defend this case because to defend the case

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Speaker 1: would involve the disclosure of top secret classified information state secrets,

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Speaker 1: and the court, I believe, upheld that that claim in

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Speaker 1: that case. Um. The Zaga, the case involving the internal

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Speaker 1: investigation of some Muslims in Orange County, California, is a

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Speaker 1: little bit more interesting because in that case, likewise, they

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Speaker 1: fascinating dispute going back to two thousand and six, and

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Speaker 1: if you remember, after two thousand one, for almost a decade,

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Speaker 1: the FBI spent an enormous amount of time and resources

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Speaker 1: following Muslims around, and in that case they launched a

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Speaker 1: fourteen month counter terrorism operation or investigation dealing with these

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Speaker 1: Muslim community in southern California, UM. And here they relied,

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Speaker 1: as they frequently do in these cases, on an informant,

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Speaker 1: a guy named Craig Monteya, when he came posing as

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Speaker 1: a Muslim convert um, and as they always do in

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Speaker 1: these cases, recorded all of his conversations with everyone in

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Speaker 1: the mosque, recorded license numbers, and it's like a page

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Speaker 1: out of the Godfather, and turned all that information over

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Speaker 1: to the to the FBI. The main difference being, unlike

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Speaker 1: the Godfather, the Muslims in Orange County weren't violating the law.

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Speaker 1: They weren't doing anything other than they say, exercising their

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Speaker 1: first mment rights. So they brought a lawsuit that said, hey,

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Speaker 1: you can't do this to us. This was an illegal

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Speaker 1: surveillance because you were doing it because of our our

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Speaker 1: religious creed, not not because we were suspective of any

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Speaker 1: any wrongdoing. And the interesting twists in this case is

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Speaker 1: this their informant, after about a year, came up clearly

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Speaker 1: with nothing, and he then began to make provocative statements

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Speaker 1: about jihad and other clearly criminal acts. That's so alarmed

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Speaker 1: the pete the Muslims in Orange County that they reported

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Speaker 1: it to the FBI kind of my right. Um. The FBI,

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Speaker 1: of course immediately shut down their operation. UM, they parted ways,

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Speaker 1: and at one point the informant then made go went

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Speaker 1: public saying I had been investigating this group in in

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Speaker 1: Orange County, and in two thousand eleven, UM, on the

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Speaker 1: basis of the spine the Muslims in Orange County, I

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Speaker 1: brought a lawsuit. So that was an interesting twist. So

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Speaker 1: tell us how state secrets came up. They brought the

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Speaker 1: lawsuit and the government responded by saying to the district court, well,

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Speaker 1: you need to dismiss the case because the only way

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Speaker 1: we could defend this case would be to disclose state secrets.

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Speaker 1: And the plainists said, well, unfortunately, under the statue called

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Speaker 1: the Foreign Surveillance Intelligence Act or FISA, UM, there's a

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Speaker 1: section of that Act eighteen oh six point f that basically,

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Speaker 1: according to the plaintiffs, repeals the State Secrets Act. It's

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Speaker 1: supplants it, and it provides for a separate procedure for

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Speaker 1: the district court to decide whether or not otherwise would

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Speaker 1: be privileged or class sign information can be disclosed. So

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Speaker 1: that's the case that went to the Ninth Circuit. The

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Speaker 1: district judge dismissed the case. The Ninth Circuit said, no,

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Speaker 1: that was wrong, and they reversed on the basis that

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Speaker 1: FISA they claimed, repealed the State Secrets Act. Now that's

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Speaker 1: a remarkable and unusual holding that the government appealed to

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Speaker 1: the Supreme Court. So I guess the justices found it

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Speaker 1: remarkable as well. It was a unanimous decision. Tell us

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Speaker 1: about it. So the Supreme Court decided, look, we read

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Speaker 1: visa carefully, and there's nothing in this particular section eighteen

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Speaker 1: h six f which was decided that repeals the State

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Speaker 1: Secrets Act um. And the Alito, who is of course

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Speaker 1: conservative and a strict constructionists, so there's nothing in that

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Speaker 1: statute that repeals it, even implicitly. And therefore the Court,

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Speaker 1: on a very narrow ground, reversed the Ninth Circuit and said,

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Speaker 1: this case can go back to the District court. State

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Speaker 1: secrets doctrine may well apply. Undoubtedly it will um, and

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Speaker 1: then you know, they'll be further proceedings. So it was

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Speaker 1: a very interesting collision in between these. No one has

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Speaker 1: ever had a case that I'm aware of where fis

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Speaker 1: a very limited statute um in a way collided with

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Speaker 1: the State secret sect. But we may see more of

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Speaker 1: these kinds of disputes. Finds that by the way, really

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Speaker 1: mainly authorizes the government to conduct foreign intelligence surveillance of

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Speaker 1: foreign entities basically spies for a foreign governments that are

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Speaker 1: running around in the US spying on our citizens are

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Speaker 1: subject to fies A surveillance and very rarely does that

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Speaker 1: information ever does a government ever attempt to inder it

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Speaker 1: into a criminal case. So that's why it was an

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Speaker 1: interesting decision. Since the informant went public, can they use

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Speaker 1: his testimony in the lawsuit? Great question? So what the

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Speaker 1: informant would testify to is undoubtedly going to be okay

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Speaker 1: because the informant almost by definition, would not have been

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Speaker 1: told about the classified, the state secret portion because the

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Speaker 1: informant was not an FBI employee. He was who knows

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Speaker 1: what his motivation was, but he was a private citizen

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Speaker 1: through the FBI then recruited to work for them. So

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Speaker 1: it's possible that there could be some instructions that the

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Speaker 1: FBI gave the informant that the government would claim to

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Speaker 1: be a secret and like the district court, of course,

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Speaker 1: when that claim is made, will weigh it, balance the

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Speaker 1: interest there made, and be what's called an in camera

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Speaker 1: expert a hearing, which bees the judge would do close

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Speaker 1: to the public and decide whether or not there any secrets.

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Speaker 1: Now that the information is primarily going to be UM sequestered,

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Speaker 1: if you will, will be why did the government target

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Speaker 1: this particular Muslim community, What was the predication or basis

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Speaker 1: for that investigation? And the government will claim that that

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Speaker 1: information would necessarily disclose um intelligence and or investigative or

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Speaker 1: counter intelligence techniques, UM that obviously they need to keep

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Speaker 1: secret because our enemies will follow this closely and could learn, Oh,

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Speaker 1: you want to get away with spying in the US

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Speaker 1: and beat the FBI, and this is how you do it.

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Speaker 1: So State secrets will be adjudicated or decided by the

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Speaker 1: probably the district court in this case. But yes, states

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Speaker 1: secrets doctrine was really revived by the Supreme Court in

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Speaker 1: this instance. So I'm wondering if you look at this

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Speaker 1: case together with the Zoo Beta case, it seems like

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Speaker 1: it's going to be very difficult to sue the federal

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Speaker 1: government when what's alleged is an illegal investigation in this case,

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Speaker 1: you know, an investigation that violates religious freedom. No, it's

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Speaker 1: a great point, that's correct. It's a nice catch, that

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Speaker 1: catch twenty two. And the catch twenty two is you

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Speaker 1: can sue the government claiming that the investigation violated your

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Speaker 1: civil rights, your First Amendment rights, but you may be

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Speaker 1: then denied the actual underlying evidence in the possession sole

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Speaker 1: possession of the federal government that would enable you to

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Speaker 1: prove that case. So the case will be ultimately thrown

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Speaker 1: out for lack of evidence. And that evidence is in

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Speaker 1: the hands of the government, and the State Secrets Act,

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Speaker 1: at least according to the government, exists to protect that

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Speaker 1: information from being disclosed. So there's a balancing that's going

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Speaker 1: to occur. Uh. And as it usually happens in these cases, um,

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Speaker 1: the finger, if you will, goes on the side of

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Speaker 1: the scales favoring the government, making these cases extremely difficult

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Speaker 1: to make. This was unanimous, whereas the other one was.

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Speaker 1: The Zabeta case was splintered every which way. Why was

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Speaker 1: this one so much easier? Is it just because it

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Speaker 1: was narrow? Well, it was easier because, frankly, it was

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Speaker 1: a narrow question of statutory interpretation, and you're right. When

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Speaker 1: it's nine zero and you have the six conservatives and

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Speaker 1: three liberal justices all agreeing, then clearly they all agreed

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Speaker 1: that the statute in this case BISA did not overrule

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Speaker 1: the State Secrets Acting. Alita wrote a very short but

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Speaker 1: very tightly reason to be in um and and indeed

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Speaker 1: they stressed in the in his decision that this was

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Speaker 1: a narrow question question um about whether advised it displays

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Speaker 1: states secret. The Justice has made a clear and sending

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Speaker 1: it back um that the plaintiffs are free to litigate

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Speaker 1: and free to they can free to challenge the imposition

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Speaker 1: of the State Secrets Act. So I think it was

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Speaker 1: nine zero because that the case will continue, perhaps not

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Speaker 1: very long. But I think the case involving Zoobida, the

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Speaker 1: torture at the Black Side overseas, I think that one

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Speaker 1: clearly was probably going to be going to be killed

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Speaker 1: by the fact that almost of the evidence that the

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Speaker 1: government would have in its possession relating to the claims

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Speaker 1: would clearly be covered by state secrets and therefore the

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Speaker 1: government would be entitled to withhold it. Thanks George. That's

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Speaker 1: George new House of Richard's Carrington, And that's it for

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Speaker 1: this edition. Of the Bloomberg Law Show. Remember, you can

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Speaker 1: always get the latest legal news by listening to our

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