1 00:00:03,200 --> 00:00:07,960 Speaker 1: This is Bloombird Law with June Brusso from Bloombird Radio 2 00:00:11,440 --> 00:00:19,000 Speaker 1: Safe s but tell her Swift can't shake off a 3 00:00:19,079 --> 00:00:22,279 Speaker 1: lawsuit that claims she stole some of the phrases in 4 00:00:22,320 --> 00:00:24,799 Speaker 1: her hit song The pop star is going to have 5 00:00:24,880 --> 00:00:27,960 Speaker 1: to face a jury after a federal judge rule that 6 00:00:28,080 --> 00:00:32,000 Speaker 1: facts in the case warren a trial. Songwriter Sean Hall 7 00:00:32,080 --> 00:00:36,000 Speaker 1: and Nathan Butler claim that Swift ripped off certain phrases 8 00:00:36,040 --> 00:00:39,160 Speaker 1: from their two thousand one song play is Gonna Play. 9 00:00:39,640 --> 00:00:43,120 Speaker 1: Listen to a comparison of the contested lyrics from both songs, 10 00:00:46,560 --> 00:01:03,560 Speaker 1: Jay Heyday Chuck joining me as intellectual property litigator Terence 11 00:01:03,640 --> 00:01:07,520 Speaker 1: ross a partner Caton Uten Rosenman. So Terry tell us 12 00:01:07,520 --> 00:01:10,720 Speaker 1: a little about the lawsuit. So, this lawsuit is about 13 00:01:10,760 --> 00:01:16,440 Speaker 1: Taylor swifts monster song shake It Off, which debuted at 14 00:01:16,520 --> 00:01:19,400 Speaker 1: number one on the Billboard Hot one hundred chart and 15 00:01:19,640 --> 00:01:23,080 Speaker 1: remained there for fifty weeks, almost an entire year, and 16 00:01:23,160 --> 00:01:25,600 Speaker 1: has sold more than nine million copies. So it's a 17 00:01:25,800 --> 00:01:30,240 Speaker 1: monster hit recording. And the plaintiff song, which also did 18 00:01:30,319 --> 00:01:33,240 Speaker 1: quite well, quite frankly called Plays, was on the Billboard 19 00:01:33,240 --> 00:01:36,200 Speaker 1: Hot one, never reached number one, but was on it 20 00:01:36,319 --> 00:01:39,600 Speaker 1: for a while and got some playtime quite frankly, and 21 00:01:39,880 --> 00:01:44,360 Speaker 1: writers of the play as song have alleged that their 22 00:01:44,480 --> 00:01:48,760 Speaker 1: chorus is so substantially similar to the chorus and Taylor 23 00:01:48,800 --> 00:01:51,160 Speaker 1: Swifts shake it off that there had to have been 24 00:01:51,240 --> 00:01:55,760 Speaker 1: copyright infringement. It seems like those phrases that they're talking 25 00:01:55,760 --> 00:01:59,240 Speaker 1: about are just common phrases. It doesn't seem like there's 26 00:01:59,240 --> 00:02:02,840 Speaker 1: anything original about them. Well, that was the original argument 27 00:02:02,880 --> 00:02:06,400 Speaker 1: that Taylor Swift made when she was first sued. She 28 00:02:06,560 --> 00:02:09,320 Speaker 1: filed a motion to dismiss the district court, which is 29 00:02:09,360 --> 00:02:11,920 Speaker 1: the trial court in the federal court system, and she 30 00:02:12,160 --> 00:02:15,800 Speaker 1: argued that these were common phrases that were not copyrightable, 31 00:02:15,880 --> 00:02:19,320 Speaker 1: they were not entitled to protection, and the district court 32 00:02:19,400 --> 00:02:23,040 Speaker 1: judge agreed and dismissed the lawsuit, and the plaintiffs took 33 00:02:23,080 --> 00:02:25,920 Speaker 1: them up to the Ninth Circuit, and the Ninth Circuit 34 00:02:26,000 --> 00:02:31,160 Speaker 1: reversed and said essentially that the lower court was focused 35 00:02:31,200 --> 00:02:34,600 Speaker 1: too much on comparing the words as words and failed 36 00:02:34,639 --> 00:02:39,920 Speaker 1: to consider that the arrangement of the words in the 37 00:02:40,040 --> 00:02:45,440 Speaker 1: chorus across the course were sufficient to be copyrightable. No 38 00:02:45,560 --> 00:02:48,720 Speaker 1: judgment on whether or not there was infringement the Ninth 39 00:02:48,720 --> 00:02:52,799 Speaker 1: Circuit simply said, there is copyright protection here, and therefore 40 00:02:53,120 --> 00:02:55,720 Speaker 1: the case was sent back to the district Court in 41 00:02:55,760 --> 00:02:59,280 Speaker 1: California for further proceedings. And that's where we are now. 42 00:02:59,440 --> 00:03:03,040 Speaker 1: With this new decision by the district court, Swiss defense 43 00:03:03,080 --> 00:03:06,680 Speaker 1: gets a little nuanced for the non musical tell us 44 00:03:06,720 --> 00:03:09,600 Speaker 1: what her defense is here. So when the case got 45 00:03:09,639 --> 00:03:13,680 Speaker 1: back to the district court, the defendants and Taylor Swift 46 00:03:13,680 --> 00:03:16,600 Speaker 1: and her musical companies filed list known as a motion 47 00:03:16,639 --> 00:03:19,520 Speaker 1: for some re judgment, which says, you know, based on 48 00:03:19,560 --> 00:03:22,799 Speaker 1: all the facts of record, there is no legal claim here, 49 00:03:22,880 --> 00:03:25,560 Speaker 1: no reasonable jury would ever find for the plaintiff, and 50 00:03:25,560 --> 00:03:28,960 Speaker 1: therefore we shouldn't have a trial. And the court rejected 51 00:03:29,080 --> 00:03:31,160 Speaker 1: that motion denied it, so there will be a trial. 52 00:03:31,440 --> 00:03:34,440 Speaker 1: But what was fundamentally at issue and came on this 53 00:03:34,520 --> 00:03:38,240 Speaker 1: case is not about the music. This is exclusively about 54 00:03:38,280 --> 00:03:41,520 Speaker 1: the lyrics of the two songs, and that makes it 55 00:03:41,560 --> 00:03:43,720 Speaker 1: different from a lot of the cases we've talked about before, 56 00:03:43,760 --> 00:03:47,160 Speaker 1: like Blurredlines and Ed Sharon's songs. It's only about the 57 00:03:47,240 --> 00:03:51,480 Speaker 1: lyrics here. And what Taylor Swift said was that there 58 00:03:51,520 --> 00:03:56,080 Speaker 1: simply is not a substantial similarity between the two songs 59 00:03:56,400 --> 00:03:59,840 Speaker 1: with respect to the copyrighted elements. The mere fact that 60 00:04:00,040 --> 00:04:04,200 Speaker 1: they both mentioned players going to play and hater is 61 00:04:04,240 --> 00:04:07,800 Speaker 1: going to hate doesn't mean that she copied in an 62 00:04:07,800 --> 00:04:11,440 Speaker 1: inappropriate manner that constituted infringement. So the same judge who 63 00:04:11,480 --> 00:04:16,200 Speaker 1: dismissed the lawsuit in is now allowing the lawsuit to 64 00:04:16,240 --> 00:04:19,240 Speaker 1: go forward. Well, he was ordered to allow the lawsuit 65 00:04:19,320 --> 00:04:22,760 Speaker 1: to go forward by the Ninth Circuit. The way copyright 66 00:04:22,880 --> 00:04:26,800 Speaker 1: law works is that there's a two part test that 67 00:04:26,920 --> 00:04:30,039 Speaker 1: is applied to determine whether or not there is infringement. 68 00:04:30,160 --> 00:04:33,000 Speaker 1: The first part is called the extrinsic test that's performed 69 00:04:33,000 --> 00:04:34,920 Speaker 1: by the judge, and then the second part is called 70 00:04:34,920 --> 00:04:37,919 Speaker 1: the intrinsic test, which is performed by the jury. And 71 00:04:38,000 --> 00:04:41,400 Speaker 1: under the part that's performed by the judge, the extrinsic test, 72 00:04:41,600 --> 00:04:46,839 Speaker 1: you look at external factors that are considered objective factors 73 00:04:47,000 --> 00:04:50,840 Speaker 1: to determine at an analytical level whether or not there's 74 00:04:51,040 --> 00:04:55,880 Speaker 1: a case of substantial similarity. And expert opinions from musicologists 75 00:04:55,880 --> 00:04:58,719 Speaker 1: come in at this point very heavily, and that's a 76 00:04:58,720 --> 00:05:01,919 Speaker 1: decision that's left to the judge, and the determination he 77 00:05:01,960 --> 00:05:04,599 Speaker 1: has to make is whether or not in looking at 78 00:05:04,640 --> 00:05:10,440 Speaker 1: these external factors there is sufficient belief that no reasonable 79 00:05:10,520 --> 00:05:13,720 Speaker 1: jury could find infringement. And if he agrees with that, 80 00:05:13,880 --> 00:05:15,840 Speaker 1: then he can cut off the case, not let it 81 00:05:15,880 --> 00:05:17,760 Speaker 1: go to the the jury. But if he has any doubts, 82 00:05:17,839 --> 00:05:20,360 Speaker 1: he has to allow the case to go on to 83 00:05:20,480 --> 00:05:23,440 Speaker 1: part two, which is the subjective or intrinsic test, which 84 00:05:23,440 --> 00:05:25,560 Speaker 1: has to be performed by a jury stand trial, in 85 00:05:25,600 --> 00:05:28,159 Speaker 1: which they look at the totality of the two works 86 00:05:28,279 --> 00:05:32,760 Speaker 1: and make a subjective judgment as to substantial similarity. The 87 00:05:32,839 --> 00:05:36,520 Speaker 1: judge was really sort of stuck here because there is 88 00:05:36,640 --> 00:05:40,039 Speaker 1: some similarity between the words and the way the words 89 00:05:40,040 --> 00:05:43,599 Speaker 1: are arranged. He really felt, I think he was correct 90 00:05:43,680 --> 00:05:45,600 Speaker 1: that he had to let this pass on to the 91 00:05:45,800 --> 00:05:48,640 Speaker 1: jury and see what they thought about the total feeling 92 00:05:48,720 --> 00:05:51,640 Speaker 1: of whether or not there was a substantial similarity. Although 93 00:05:51,720 --> 00:05:55,760 Speaker 1: he mentioned that he thought taylor Swiss defense was a 94 00:05:55,760 --> 00:05:59,279 Speaker 1: pretty good defense and might farewell with the jury. So 95 00:05:59,360 --> 00:06:02,200 Speaker 1: now let's go to his opinion where he talks about 96 00:06:02,320 --> 00:06:04,920 Speaker 1: the factors to be considered. He said, the Ninth Circuit 97 00:06:04,960 --> 00:06:08,240 Speaker 1: has acknowledged that it has never announced a uniform set 98 00:06:08,240 --> 00:06:12,200 Speaker 1: of factors for analyzing a musical composition under the extrinsic test, 99 00:06:12,320 --> 00:06:14,799 Speaker 1: and that it did not intend to change that precedent, 100 00:06:15,120 --> 00:06:18,599 Speaker 1: although it recognizes the difficulties faced by the district court. 101 00:06:18,920 --> 00:06:23,000 Speaker 1: So the Ninth Circuit basically says, yes, this test is confusing, 102 00:06:23,320 --> 00:06:25,480 Speaker 1: but we're not going to help you out. Yes, And 103 00:06:25,600 --> 00:06:30,400 Speaker 1: this is the problem that district judges have with copyright cases. 104 00:06:30,800 --> 00:06:33,280 Speaker 1: The Courts of Appeal have said, you have a role 105 00:06:33,320 --> 00:06:36,000 Speaker 1: to play as a gatekeeper as to whether or not 106 00:06:36,040 --> 00:06:38,680 Speaker 1: these cases go to trial and get decided by a jury, 107 00:06:39,000 --> 00:06:41,159 Speaker 1: but we're not going to give you a list of 108 00:06:41,240 --> 00:06:45,680 Speaker 1: factors to consider. And he references a very famous Ninth 109 00:06:45,720 --> 00:06:49,240 Speaker 1: Circuit case that involved Mariah Carey's song Thank God I 110 00:06:49,320 --> 00:06:54,840 Speaker 1: Found You, which also involved alleged similarities in the chorus 111 00:06:54,880 --> 00:06:57,839 Speaker 1: of two songs. And in that case, as the judges 112 00:06:57,920 --> 00:07:01,520 Speaker 1: accurately quoted the Ninth Sir came right out and said, book, 113 00:07:01,560 --> 00:07:03,680 Speaker 1: we can't come up with a list of standards for 114 00:07:03,720 --> 00:07:06,880 Speaker 1: the district courts to consider. There's no checklist. You just 115 00:07:06,920 --> 00:07:09,360 Speaker 1: have to consider anything that seems relevant to you. And 116 00:07:09,440 --> 00:07:14,160 Speaker 1: that's a very ambiguous thing to tell the judge who 117 00:07:14,200 --> 00:07:16,720 Speaker 1: actually has to on a day to day basis, and 118 00:07:16,800 --> 00:07:19,920 Speaker 1: Minister Justice in the copyright round, and to certain extent 119 00:07:20,000 --> 00:07:22,120 Speaker 1: it's unfair, Although I get what the nice story is 120 00:07:22,120 --> 00:07:24,600 Speaker 1: saying is it's hard to come up with a comprehensive 121 00:07:24,640 --> 00:07:27,640 Speaker 1: list in other areas of copyright law. That hasn't stopped 122 00:07:27,720 --> 00:07:30,280 Speaker 1: us from coming on police with partial list. Fair Youth 123 00:07:30,480 --> 00:07:33,400 Speaker 1: have four factors that mandatorially must be considered Court of 124 00:07:33,400 --> 00:07:36,360 Speaker 1: the Supreme Court, but you can bring in other factors 125 00:07:36,400 --> 00:07:39,120 Speaker 1: that may be relevant. I struggle to understand why we 126 00:07:39,200 --> 00:07:42,960 Speaker 1: can't do that with respect to this substantial similarity test, 127 00:07:43,000 --> 00:07:46,080 Speaker 1: at least with respect to the extrinsic prong of the test. 128 00:07:46,240 --> 00:07:48,600 Speaker 1: So is to help out district court judges. What's the 129 00:07:48,640 --> 00:07:52,640 Speaker 1: biggest obstacle for the plaintiffs at trial? The problem I 130 00:07:52,680 --> 00:07:56,520 Speaker 1: think the plaintives actually face here is Taylor Swift being 131 00:07:56,520 --> 00:08:00,840 Speaker 1: the defendant. Taylor Swift is not just any work boarding artists. 132 00:08:01,200 --> 00:08:04,920 Speaker 1: Taylor Swift is iconic. Take one of my daughter's Caroline, 133 00:08:04,920 --> 00:08:07,800 Speaker 1: for example. She just loves Taylor's wife and could never 134 00:08:07,920 --> 00:08:12,160 Speaker 1: believe that Taylor Swift copied anybody else's work because she 135 00:08:12,480 --> 00:08:15,720 Speaker 1: is so awesome. Now you're going to get a jury 136 00:08:15,800 --> 00:08:19,360 Speaker 1: pool that has many people that feel that exact same way, 137 00:08:19,480 --> 00:08:22,240 Speaker 1: and the plaintiff will have no chance to convince them. 138 00:08:22,320 --> 00:08:25,040 Speaker 1: And yes, they will get the opportunity of law dear 139 00:08:25,120 --> 00:08:27,200 Speaker 1: them and ask them questions to try to sort out 140 00:08:27,240 --> 00:08:29,960 Speaker 1: people who may be prejudiced. But the reality is a 141 00:08:30,000 --> 00:08:33,320 Speaker 1: lot of juris, particularly Taylor's Swift Sands, would die to 142 00:08:33,480 --> 00:08:35,880 Speaker 1: serve on this jury. And actually you get to see 143 00:08:35,960 --> 00:08:39,080 Speaker 1: Taylor Swift up close and personal testifying, and so they're 144 00:08:39,080 --> 00:08:41,560 Speaker 1: gonna be working real hard to get onto the jury 145 00:08:41,679 --> 00:08:45,200 Speaker 1: even if they're not being completely forthright during law dear, 146 00:08:45,600 --> 00:08:49,040 Speaker 1: and those jurors are gonna be in the defendant's pocket 147 00:08:49,320 --> 00:08:51,680 Speaker 1: from day one, and there'll be nothing that can convince them. 148 00:08:52,000 --> 00:08:54,920 Speaker 1: And that is the real problem that the plaintiffs have 149 00:08:55,040 --> 00:08:58,160 Speaker 1: here at trial, is that they're up against Taylor Swift 150 00:08:58,200 --> 00:09:01,160 Speaker 1: and her legion of fans. Is there a chance of 151 00:09:01,200 --> 00:09:06,080 Speaker 1: settlement here? It's been going on since twenty seventeen, So 152 00:09:06,240 --> 00:09:10,400 Speaker 1: I have no inside information on settlement negotiations. I'll simply 153 00:09:10,480 --> 00:09:15,200 Speaker 1: note that Taylor Swift has placed her respect and honor 154 00:09:15,360 --> 00:09:20,040 Speaker 1: as one of America's great singer songwriters above considerations as 155 00:09:20,080 --> 00:09:23,840 Speaker 1: to defense costs. Typically you get settlements one the defendant 156 00:09:23,920 --> 00:09:26,800 Speaker 1: as this just isn't worth the money I'm paying my attorneys, 157 00:09:26,960 --> 00:09:29,440 Speaker 1: I'll settle for a low dollar amount, even though I 158 00:09:29,480 --> 00:09:31,959 Speaker 1: don't believe I did anything wrong. I don't think that's 159 00:09:32,000 --> 00:09:34,440 Speaker 1: going to happen with Taylor Swift. This is one of 160 00:09:34,440 --> 00:09:38,000 Speaker 1: her iconic songs, and I don't think she's going to 161 00:09:38,040 --> 00:09:40,440 Speaker 1: be wanting to be in a position where people would say, ah, 162 00:09:40,440 --> 00:09:43,480 Speaker 1: she she took the lyrics from somebody else. Just to 163 00:09:43,520 --> 00:09:46,120 Speaker 1: talk about the line of cases here, there were several 164 00:09:46,200 --> 00:09:50,960 Speaker 1: high profile copyright infringement lawsuits. The Blurredline case in particular, 165 00:09:51,240 --> 00:09:54,400 Speaker 1: there was a concern that artist songwriters would face a 166 00:09:54,400 --> 00:09:57,720 Speaker 1: ton of lawsuits. Did the tide change with the led 167 00:09:57,800 --> 00:10:02,440 Speaker 1: Zeppelin suit? I certainly at the pendulum was swinging back 168 00:10:02,720 --> 00:10:08,719 Speaker 1: in favor of more reasoned review of these music cases. 169 00:10:09,160 --> 00:10:12,800 Speaker 1: Keep in mind that this is a lyrics case. Blurredlines, 170 00:10:13,280 --> 00:10:18,319 Speaker 1: led Zeppelin at Sharon cases involved the actual tunes, the notes, 171 00:10:18,440 --> 00:10:22,640 Speaker 1: the music, which are very difficult to analyze for a 172 00:10:22,720 --> 00:10:26,840 Speaker 1: districred judge or lay jurors. Lyrics are something that you 173 00:10:26,960 --> 00:10:33,200 Speaker 1: really don't expect to have as much difficulty with, and 174 00:10:33,440 --> 00:10:35,760 Speaker 1: I will say I was surprised that the ninth circuit 175 00:10:35,840 --> 00:10:39,079 Speaker 1: reversed and found that there was something about the arrangement 176 00:10:39,280 --> 00:10:44,200 Speaker 1: sequencing in the course that was copyrightable. The general black 177 00:10:44,320 --> 00:10:48,760 Speaker 1: letter rule of law is that short phrases are not copyrightable. 178 00:10:49,000 --> 00:10:52,560 Speaker 1: But here the court emphasized the arrangement sequencing of these 179 00:10:52,559 --> 00:10:57,000 Speaker 1: short phrases, and that is very reminiscent of other music 180 00:10:57,040 --> 00:11:00,720 Speaker 1: cases involving the tunes, the notes, and so that's introduced 181 00:11:00,720 --> 00:11:03,000 Speaker 1: tailment of complexity here, and we'll just have to see 182 00:11:03,040 --> 00:11:05,760 Speaker 1: what a jury things. I think there is some possibility 183 00:11:05,960 --> 00:11:08,560 Speaker 1: here that a jury will just go off on their 184 00:11:08,600 --> 00:11:11,560 Speaker 1: instincts and say that doesn't that that doesn't sound right 185 00:11:11,600 --> 00:11:14,480 Speaker 1: to me, that that's taking of things that are in 186 00:11:14,520 --> 00:11:18,800 Speaker 1: common parlance. But we'll see that's taking of things that 187 00:11:18,840 --> 00:11:22,520 Speaker 1: are in common parlance. But we'll see. So in light 188 00:11:22,600 --> 00:11:26,520 Speaker 1: of Bruce Springsteen selling his music catalog for half a 189 00:11:26,559 --> 00:11:30,599 Speaker 1: billion dollars, tell us about the process Taylor Swift is 190 00:11:30,640 --> 00:11:35,040 Speaker 1: in process of re re releasing the recordings now releasing 191 00:11:35,080 --> 00:11:38,480 Speaker 1: the re recordings of her first six albums. Just tell 192 00:11:38,559 --> 00:11:42,160 Speaker 1: us why. So it would take us an entire another 193 00:11:42,200 --> 00:11:46,000 Speaker 1: episode to discuss how this came to be. But essentially, 194 00:11:46,080 --> 00:11:49,599 Speaker 1: as a very young artist and this is common in 195 00:11:49,640 --> 00:11:52,640 Speaker 1: the music business. Taylor Swift lost the what are called 196 00:11:52,640 --> 00:11:56,480 Speaker 1: the mechanical rights to her songs. She does not have 197 00:11:56,559 --> 00:12:00,480 Speaker 1: control over the actual recordings the tapes, as they used 198 00:12:00,520 --> 00:12:05,880 Speaker 1: to say, and tried very hard to get control over them, 199 00:12:05,920 --> 00:12:10,600 Speaker 1: not purely for financial reasons, but also because she did 200 00:12:10,600 --> 00:12:14,080 Speaker 1: not want her music and her name being free to 201 00:12:14,160 --> 00:12:19,000 Speaker 1: be bought and sold as it appeared to be happening. 202 00:12:19,480 --> 00:12:23,880 Speaker 1: And she was unsuccessful in getting control over those early 203 00:12:23,920 --> 00:12:26,800 Speaker 1: works back and so UM she has set up out 204 00:12:26,840 --> 00:12:31,920 Speaker 1: upon a process of re recording all of her early works. 205 00:12:31,960 --> 00:12:36,120 Speaker 1: Each one has the same title, except in parses afterwards, 206 00:12:36,160 --> 00:12:40,640 Speaker 1: it's Taylor's version, UM, and this will give her control 207 00:12:40,679 --> 00:12:45,520 Speaker 1: over the mechanical rights to those particular covers, if you will, 208 00:12:45,559 --> 00:12:49,760 Speaker 1: of her own original work. If the Bruce Springsteen situation 209 00:12:49,920 --> 00:12:54,240 Speaker 1: is very different from Taylor's Swiss situation, UM, Bruce Springsteen 210 00:12:54,360 --> 00:12:57,360 Speaker 1: is sort of at the end of his recording career um, 211 00:12:57,520 --> 00:13:00,520 Speaker 1: and we wish him many many years of good life ahead, 212 00:13:00,600 --> 00:13:03,559 Speaker 1: but also a sort of the end of his life journey. 213 00:13:03,760 --> 00:13:06,160 Speaker 1: Taylor Swift is very much at the beginning of it, 214 00:13:06,360 --> 00:13:08,760 Speaker 1: and it is still at the forefront of her mind. 215 00:13:08,840 --> 00:13:12,959 Speaker 1: That she has decades and decades of recording ahead and 216 00:13:12,960 --> 00:13:15,720 Speaker 1: and just living experience, and and and wants to have 217 00:13:15,800 --> 00:13:20,520 Speaker 1: control over her name and her songs. You can't blame 218 00:13:20,520 --> 00:13:24,200 Speaker 1: her one bit um for for that goal. And so 219 00:13:24,280 --> 00:13:28,400 Speaker 1: she is taking completely different approach than what Bruce Springsteen 220 00:13:28,480 --> 00:13:33,400 Speaker 1: recently UM did. She's also had UM at a much 221 00:13:33,400 --> 00:13:38,000 Speaker 1: earlier point in her life success financially with her recordings. 222 00:13:38,640 --> 00:13:43,199 Speaker 1: I've just been reading Steven van Zant's Um autobiography, Bruce 223 00:13:43,240 --> 00:13:46,560 Speaker 1: Springsteen's Best Friend, talking about their early days, and you know, 224 00:13:46,679 --> 00:13:50,800 Speaker 1: despite so much great music that Bruce Springsteen and the 225 00:13:50,800 --> 00:13:55,120 Speaker 1: Easter Band produced in those those early days, financially, they 226 00:13:55,120 --> 00:13:57,800 Speaker 1: weren't seeing a lot of the rewards and did not 227 00:13:58,000 --> 00:14:02,560 Speaker 1: have the same sort of lifestyle that Taylor Swifted modern 228 00:14:02,600 --> 00:14:06,160 Speaker 1: recording artists seemed to have with their success and and 229 00:14:06,200 --> 00:14:11,240 Speaker 1: so respect. You know, Bruce brings Rosie a number of 230 00:14:11,280 --> 00:14:15,040 Speaker 1: children trying to monetize and now the later part of 231 00:14:15,040 --> 00:14:19,120 Speaker 1: his life um all of those works, whereas Taylish was 232 00:14:19,160 --> 00:14:22,200 Speaker 1: still at the start of her life and career. Thanks 233 00:14:22,200 --> 00:14:25,320 Speaker 1: for being on the show, Terry. That's Terence Fross a partner. 234 00:14:25,440 --> 00:14:32,160 Speaker 1: Catn Uten Rosenman hedge funds, beware. The United States Department 235 00:14:32,160 --> 00:14:36,840 Speaker 1: of Justice is digging into your symbionic relationship with research firms, 236 00:14:37,160 --> 00:14:40,840 Speaker 1: hunting for signs you tried to engineer stunning stock drops 237 00:14:40,960 --> 00:14:44,920 Speaker 1: or engaged in insider trading. It's an investigation that's thrilled 238 00:14:45,040 --> 00:14:48,600 Speaker 1: legions of small investors, as trading in at least several 239 00:14:48,680 --> 00:14:52,840 Speaker 1: dozen stocks is being examined, according to Bloomberg sources. Joining 240 00:14:52,880 --> 00:14:55,480 Speaker 1: me is an expert in the area, Professor John Coffey 241 00:14:55,560 --> 00:14:59,280 Speaker 1: of Columbia Law School. Jack tell us about this investigation 242 00:14:59,400 --> 00:15:01,920 Speaker 1: and when it's started, well, this is something they've been 243 00:15:01,960 --> 00:15:05,560 Speaker 1: planning for at least six months or more. They've consulted 244 00:15:05,560 --> 00:15:08,280 Speaker 1: with some of the leading financial economists in the country. 245 00:15:08,680 --> 00:15:11,440 Speaker 1: They are doing a very careful review of a large 246 00:15:11,520 --> 00:15:14,600 Speaker 1: number of cases. But I think what has most bothered 247 00:15:14,640 --> 00:15:18,920 Speaker 1: them is the exploitation of a short interval between when 248 00:15:18,920 --> 00:15:22,840 Speaker 1: a group of short sellers published negative research, often on 249 00:15:22,880 --> 00:15:26,720 Speaker 1: an anonymous basis or a pseudo anonymous basis, and then 250 00:15:26,960 --> 00:15:30,000 Speaker 1: prayed heavily in the period between when they release it 251 00:15:30,040 --> 00:15:32,520 Speaker 1: on one day and the next day when the company 252 00:15:32,600 --> 00:15:35,960 Speaker 1: is able to respond. When the company responds, it may 253 00:15:36,000 --> 00:15:39,520 Speaker 1: be able to come back with a convincing explanation or rebuttal, 254 00:15:39,720 --> 00:15:42,520 Speaker 1: and the market equilibrates and there's not much of a decline, 255 00:15:42,600 --> 00:15:45,480 Speaker 1: but for that first day there may be a drop 256 00:15:45,600 --> 00:15:48,040 Speaker 1: or something in the stock, and the short sellers make 257 00:15:48,080 --> 00:15:51,440 Speaker 1: out like bandits. That doesn't look like it's fair to 258 00:15:51,560 --> 00:15:54,600 Speaker 1: the small shareholders who tend to panic when they first 259 00:15:54,600 --> 00:15:58,080 Speaker 1: hear the news and then get reassured when the company responds, 260 00:15:58,280 --> 00:16:01,040 Speaker 1: but then it's too late that they've already sold hedge 261 00:16:01,040 --> 00:16:04,560 Speaker 1: bonds and researchers do have a relationship. That's legal. It 262 00:16:04,720 --> 00:16:07,760 Speaker 1: is certainly legal, but here is the question. You can 263 00:16:07,800 --> 00:16:11,880 Speaker 1: certainly hire researchers, but it is arguably deceptive to publish 264 00:16:11,880 --> 00:16:16,280 Speaker 1: a report as independent research, which gives a greater credibility 265 00:16:16,280 --> 00:16:19,200 Speaker 1: in the public's mind, when in fact you have already 266 00:16:19,320 --> 00:16:22,040 Speaker 1: commissioned it and paid for an advance, and you asked 267 00:16:22,080 --> 00:16:25,120 Speaker 1: them to research a particular target that you're interested in. 268 00:16:25,480 --> 00:16:30,080 Speaker 1: So our prosecutors looking for internal documents then of a relationship, 269 00:16:30,080 --> 00:16:32,120 Speaker 1: I think they will be I think that they're going 270 00:16:32,200 --> 00:16:36,080 Speaker 1: to want cases that have what lawyers typically called badges 271 00:16:36,080 --> 00:16:39,040 Speaker 1: of fraud, something where there's been a bribe but there's 272 00:16:39,080 --> 00:16:42,640 Speaker 1: been clear insighter trading when you've done something else so 273 00:16:42,680 --> 00:16:45,760 Speaker 1: that doesn't just look like ordinary short selling. You have 274 00:16:45,840 --> 00:16:48,880 Speaker 1: to remember that short sellers are both the heroes and 275 00:16:49,000 --> 00:16:51,760 Speaker 1: the rogues of the market. They have uncovered the biggest 276 00:16:51,760 --> 00:16:56,160 Speaker 1: frauds which often escaped the government, often escaped the accountants, 277 00:16:56,280 --> 00:17:00,440 Speaker 1: and often escape everybody except the profit motivated short seller. 278 00:17:00,840 --> 00:17:04,160 Speaker 1: In the last two years, cases like the Lucky Coffee 279 00:17:04,160 --> 00:17:07,359 Speaker 1: case in China or the wire card case in Germany, 280 00:17:07,520 --> 00:17:11,480 Speaker 1: billions were lost and none of the regular gatekeepers responded 281 00:17:11,520 --> 00:17:14,879 Speaker 1: in any way until the short sellers came in. Remember 282 00:17:14,880 --> 00:17:17,119 Speaker 1: it with short sellers who caught en Ron when the 283 00:17:17,160 --> 00:17:19,840 Speaker 1: accountants MR and the sec MR and no one else 284 00:17:19,880 --> 00:17:22,399 Speaker 1: saw it. So we need them. They can be heroes 285 00:17:22,400 --> 00:17:24,640 Speaker 1: of the market, but they can also try to make quick, 286 00:17:24,760 --> 00:17:29,600 Speaker 1: cheap profits, exploiting this time differential or providing research that 287 00:17:29,720 --> 00:17:32,760 Speaker 1: they have paid for and focused in a way that's 288 00:17:32,840 --> 00:17:36,960 Speaker 1: quite harsh without disclosing that this was commission research rather 289 00:17:37,000 --> 00:17:41,639 Speaker 1: than independent research. They were celebrating about this investigation on 290 00:17:41,800 --> 00:17:46,160 Speaker 1: platforms such as Reddit, Stock, Twits, and Twitter. Those are 291 00:17:46,160 --> 00:17:49,680 Speaker 1: exactly the retail customers who feel they are exploited by 292 00:17:49,680 --> 00:17:52,720 Speaker 1: short sellers because they see the bad news and they 293 00:17:52,760 --> 00:17:55,280 Speaker 1: rest to protect themselves, and the next day or the 294 00:17:55,359 --> 00:17:58,880 Speaker 1: day after that, the company responds. It looks like only 295 00:17:58,920 --> 00:18:02,200 Speaker 1: a small difference in their positions. Is this just another 296 00:18:02,320 --> 00:18:06,880 Speaker 1: front in the Department of Justices inquiry or is this 297 00:18:07,000 --> 00:18:11,320 Speaker 1: a new inquiry? Well, I think it's nothing is totally new, 298 00:18:11,520 --> 00:18:13,560 Speaker 1: But I think there's much in this that is new. 299 00:18:13,680 --> 00:18:16,960 Speaker 1: This is the Department of Justice bringing a criminal investigation, 300 00:18:17,400 --> 00:18:21,000 Speaker 1: not the sec bringing some charges and settling quietly. People 301 00:18:21,040 --> 00:18:23,159 Speaker 1: are going to be staced with prison if they are 302 00:18:23,280 --> 00:18:28,600 Speaker 1: found to have deliberately misled or hidden key facts, particularly 303 00:18:28,640 --> 00:18:32,080 Speaker 1: the use of the pseudonymous article. That is, rather than 304 00:18:32,119 --> 00:18:33,520 Speaker 1: putting it out in your own name, you put it 305 00:18:33,560 --> 00:18:36,119 Speaker 1: out in some new name that you just create, the 306 00:18:36,160 --> 00:18:40,840 Speaker 1: Avenging Angel, spider Man, whatever, and that it looks credible. 307 00:18:41,080 --> 00:18:43,320 Speaker 1: But if you knew this was the guys that gave 308 00:18:43,359 --> 00:18:46,840 Speaker 1: you some overstated advice six times in the last year, 309 00:18:47,000 --> 00:18:49,640 Speaker 1: you give it less weight. So you use this new 310 00:18:49,760 --> 00:18:52,680 Speaker 1: name and help that will give it greater credibility, or 311 00:18:52,720 --> 00:18:56,520 Speaker 1: at least won't carry the negative associations that the short 312 00:18:56,520 --> 00:18:59,919 Speaker 1: sellers have already created. So how challenging would it be 313 00:19:00,160 --> 00:19:03,920 Speaker 1: for prosecutors to bring charges against short sellers and win. 314 00:19:04,520 --> 00:19:06,960 Speaker 1: It depends on the evidence they get, which is why 315 00:19:07,000 --> 00:19:09,720 Speaker 1: I hope they hold back until they have a case 316 00:19:09,760 --> 00:19:12,679 Speaker 1: with strong evidence. If their government can show that you 317 00:19:12,760 --> 00:19:17,000 Speaker 1: were paying people to give them confidential information about their employer, 318 00:19:17,400 --> 00:19:19,560 Speaker 1: that would be a case it looks like they're paying 319 00:19:19,600 --> 00:19:22,560 Speaker 1: people to breach their produciary duties. Or if you get 320 00:19:22,560 --> 00:19:26,800 Speaker 1: other cases of insider trading or bribery or deliberate deception. 321 00:19:27,080 --> 00:19:30,560 Speaker 1: If you call this independent research when you half wrote it, 322 00:19:30,840 --> 00:19:32,760 Speaker 1: you are a short center. You are known to be 323 00:19:32,840 --> 00:19:35,320 Speaker 1: on this side of the aisle, and no one totally 324 00:19:35,400 --> 00:19:38,840 Speaker 1: trusts you when you put out what you call independent research. 325 00:19:39,080 --> 00:19:41,080 Speaker 1: But it may be that you wrote half that independent 326 00:19:41,080 --> 00:19:43,680 Speaker 1: research and you edited so they said exactly what you wanted. 327 00:19:43,800 --> 00:19:46,560 Speaker 1: That can be deceptive. I was sort of surprised the 328 00:19:46,600 --> 00:19:51,200 Speaker 1: investigation is being handled by federal prosecutors in Los Angeles. 329 00:19:51,600 --> 00:19:54,879 Speaker 1: I thought that prosecutors in Manhattan usually handle these types 330 00:19:54,920 --> 00:19:58,680 Speaker 1: of financial crimes. Well, often these kind of cases are 331 00:19:58,720 --> 00:20:01,000 Speaker 1: in the Southern District in New York. But remember, the 332 00:20:01,119 --> 00:20:04,199 Speaker 1: government has only so much resources. And these are the 333 00:20:04,240 --> 00:20:07,760 Speaker 1: same people, by the way, leading this investigation who recently 334 00:20:07,800 --> 00:20:12,439 Speaker 1: won some major and unprecedented cases in which criminal violations 335 00:20:12,480 --> 00:20:15,480 Speaker 1: were found for spoofing, so they have one original case. 336 00:20:15,600 --> 00:20:19,640 Speaker 1: In the past, you and about a dozen other prominent 337 00:20:19,720 --> 00:20:24,240 Speaker 1: securities law professors have urged the sec to do certain things. 338 00:20:24,240 --> 00:20:28,080 Speaker 1: Tell us what you want you think again, I'm told 339 00:20:28,119 --> 00:20:31,600 Speaker 1: you that there is this exploitation of this narrow window 340 00:20:32,000 --> 00:20:35,679 Speaker 1: between when you put out negative research and immediately trade 341 00:20:35,720 --> 00:20:38,840 Speaker 1: on it and when the company responds. I think there 342 00:20:38,880 --> 00:20:42,280 Speaker 1: should be some way to close that window further so 343 00:20:42,320 --> 00:20:45,359 Speaker 1: that you can't make a bundle of money on the 344 00:20:45,480 --> 00:20:47,920 Speaker 1: hour or two in which no one else is commenting, 345 00:20:48,240 --> 00:20:51,840 Speaker 1: and that has been happening. We also have a problem 346 00:20:51,920 --> 00:20:55,080 Speaker 1: with what I'll call the pseudonymous research, where you use 347 00:20:55,240 --> 00:20:58,440 Speaker 1: some new entity that no one's ever heard of, Spider Man, 348 00:20:58,480 --> 00:21:01,440 Speaker 1: Avenging Angel, or something like some kind of fancy new name, 349 00:21:01,880 --> 00:21:03,840 Speaker 1: and you may have to just may have to disclose 350 00:21:04,200 --> 00:21:07,359 Speaker 1: who is behind that. There's First Amendment problems there, to 351 00:21:07,440 --> 00:21:10,520 Speaker 1: be sure, because we don't like to restrict speech. But 352 00:21:10,640 --> 00:21:14,920 Speaker 1: hiding your identity when you have a strong reputation, which 353 00:21:14,920 --> 00:21:17,880 Speaker 1: will lead investors not to trust you as much, that 354 00:21:18,000 --> 00:21:21,720 Speaker 1: strikes me something that could also be misleading. So lawmakers 355 00:21:21,760 --> 00:21:27,360 Speaker 1: have held several hearings following that meme stock trading frenzy 356 00:21:27,600 --> 00:21:31,200 Speaker 1: in January. Do you expect lawmakers or do you think 357 00:21:31,320 --> 00:21:35,440 Speaker 1: lawmakers should do something here? Well, I don't think they 358 00:21:35,480 --> 00:21:38,840 Speaker 1: will because this is complex and lawmakers like to have 359 00:21:38,880 --> 00:21:42,080 Speaker 1: a simple target. I think the SEC could do more 360 00:21:42,480 --> 00:21:46,320 Speaker 1: both with respect to short selling rules and the general problems. 361 00:21:46,560 --> 00:21:49,040 Speaker 1: When you look at the game Stop in the A 362 00:21:49,160 --> 00:21:53,600 Speaker 1: m C Trading you see villains on post sides. You 363 00:21:53,720 --> 00:21:57,119 Speaker 1: see the game of vocation of the market, people turning 364 00:21:57,160 --> 00:22:00,440 Speaker 1: trading into a game at places like Robert Hood, which 365 00:22:00,440 --> 00:22:03,960 Speaker 1: creates an excessive incentive to trade and to trade on options, 366 00:22:03,960 --> 00:22:06,520 Speaker 1: which is very, very dangerous. On the other side, you 367 00:22:06,560 --> 00:22:10,600 Speaker 1: see short sellers. Gave Stop was in part an attempt 368 00:22:10,640 --> 00:22:13,400 Speaker 1: to squeeze the short sellers, and it did squeeze them, 369 00:22:13,800 --> 00:22:18,280 Speaker 1: and perhaps they deserve to be squeezed. But we had 370 00:22:18,800 --> 00:22:22,679 Speaker 1: people on one side who were trading excessively because of 371 00:22:22,720 --> 00:22:25,320 Speaker 1: all these new apps that make it so simple and 372 00:22:25,359 --> 00:22:28,480 Speaker 1: so attractive, and because they're told that it's free. It's 373 00:22:28,520 --> 00:22:31,480 Speaker 1: not really free, but they're told that. On the other side, 374 00:22:31,480 --> 00:22:34,960 Speaker 1: we have people who were engaged in heavy shorting of 375 00:22:35,000 --> 00:22:38,240 Speaker 1: a stock like game Stop, which to most traditional investors, 376 00:22:38,280 --> 00:22:40,920 Speaker 1: looks like a very shaky company. Oh, it looks like 377 00:22:41,520 --> 00:22:44,399 Speaker 1: it's the future of the world to those people in 378 00:22:44,440 --> 00:22:47,520 Speaker 1: the Men and the mem Stock group. On riddit, Thanks Jack. 379 00:22:47,800 --> 00:22:53,200 Speaker 1: That's Professor John Coffee at Columbia Law School. Former Minnesota 380 00:22:53,240 --> 00:22:56,240 Speaker 1: police officer Kim Potter is on trial for the fatal 381 00:22:56,240 --> 00:22:59,440 Speaker 1: shooting of twenty year old Dante Right during a traffic 382 00:22:59,480 --> 00:23:02,719 Speaker 1: stop in April. Potter says she meant to draw her 383 00:23:02,840 --> 00:23:06,480 Speaker 1: taser to stop Right from driving away as officers tried 384 00:23:06,520 --> 00:23:09,920 Speaker 1: to arrest him on an outstanding warrant for weapons possession, 385 00:23:10,200 --> 00:23:13,359 Speaker 1: but she drew her gun by mistake. Potter is white 386 00:23:13,400 --> 00:23:15,720 Speaker 1: and Right was black, and his death in the middle 387 00:23:15,760 --> 00:23:19,800 Speaker 1: of the trial of former Minneapolis police officer Derek Chauvin 388 00:23:19,960 --> 00:23:23,399 Speaker 1: for the death of George Floyd set off several nights 389 00:23:23,400 --> 00:23:28,040 Speaker 1: of angry protests. Joining me as former public defender Krista Groshek, 390 00:23:28,280 --> 00:23:33,199 Speaker 1: managing attorney of Grossek Law, the prosecution played this video 391 00:23:33,320 --> 00:23:38,520 Speaker 1: of Potter right after she shot Right, hysterical rocking back 392 00:23:38,560 --> 00:23:42,239 Speaker 1: and forth while laying face down on the lawn with 393 00:23:42,280 --> 00:23:45,320 Speaker 1: her head in her hands and saying, I don't know 394 00:23:45,840 --> 00:23:48,600 Speaker 1: I don't know what happened. Which way does that cut? 395 00:23:48,720 --> 00:23:51,840 Speaker 1: Does that work for the prosecution or for the defense? 396 00:23:52,680 --> 00:23:55,600 Speaker 1: I think it works great for the defense. I think 397 00:23:55,640 --> 00:23:57,000 Speaker 1: that a jury is going to have a hard time 398 00:23:57,040 --> 00:24:00,399 Speaker 1: convicting somebody that reacted like that, Like this was clearly 399 00:24:00,440 --> 00:24:04,280 Speaker 1: an accident, it was on planned. She was immediately remorseful. 400 00:24:04,760 --> 00:24:07,879 Speaker 1: She's also fearful that she'd be facing charges herself. So 401 00:24:08,040 --> 00:24:10,960 Speaker 1: her worst nightmare came true. But it wasn't a stretch 402 00:24:11,000 --> 00:24:12,879 Speaker 1: for her to think she'd be charged. I mean, in 403 00:24:12,920 --> 00:24:15,160 Speaker 1: this day and age of police scrutiny, and of course 404 00:24:15,200 --> 00:24:17,200 Speaker 1: you know George Floyd was going on at the time 405 00:24:17,240 --> 00:24:19,600 Speaker 1: of the stop. I think this is really powerful evidence 406 00:24:19,640 --> 00:24:22,840 Speaker 1: of the defense. I really do. One part of it, 407 00:24:23,240 --> 00:24:25,880 Speaker 1: as you mentioned, she said I'm going to prison, Oh 408 00:24:25,920 --> 00:24:29,040 Speaker 1: my god, what am I going to do now? Mike. 409 00:24:29,119 --> 00:24:32,040 Speaker 1: The jury interpret from that that she was worried about 410 00:24:32,040 --> 00:24:37,320 Speaker 1: herself rather than about the boy she just killed. I thought, 411 00:24:37,320 --> 00:24:40,719 Speaker 1: at the beginning of that transcript, if you will, she 412 00:24:40,840 --> 00:24:43,200 Speaker 1: had said, oh my god, I just I just shot 413 00:24:43,280 --> 00:24:45,639 Speaker 1: him where I just killed him. I just killed killed 414 00:24:45,640 --> 00:24:49,000 Speaker 1: a man. What we know about Potter is that, you know, 415 00:24:49,480 --> 00:24:53,960 Speaker 1: I don't think she has seen a lot of street action, 416 00:24:54,040 --> 00:24:56,080 Speaker 1: if you will, like she she did a fair amount 417 00:24:56,160 --> 00:24:59,760 Speaker 1: of all I guess hostage negotiation, and historically she's been 418 00:24:59,800 --> 00:25:01,720 Speaker 1: able to say the right thing to talk people down 419 00:25:01,960 --> 00:25:03,600 Speaker 1: right so she doesn't have to grab her gun on 420 00:25:03,640 --> 00:25:06,680 Speaker 1: her taser. What I thought was super powerful about the 421 00:25:06,720 --> 00:25:09,960 Speaker 1: defense opening, and I believe this is true that she's 422 00:25:10,080 --> 00:25:14,119 Speaker 1: never had to use her taser before, never, So I 423 00:25:14,160 --> 00:25:17,080 Speaker 1: think this was a reaction from somebody that you know, 424 00:25:17,280 --> 00:25:21,000 Speaker 1: thought pretty clearly based upon how everything went down. She 425 00:25:21,080 --> 00:25:23,439 Speaker 1: had good reason to believe that he was dead and 426 00:25:23,480 --> 00:25:26,200 Speaker 1: there really wasn't much to be done, and she was 427 00:25:26,240 --> 00:25:28,840 Speaker 1: also not in a location, you know, near him to 428 00:25:28,920 --> 00:25:32,240 Speaker 1: do something. I mean, she just absolutely collapsed really at 429 00:25:32,240 --> 00:25:35,520 Speaker 1: the scene of where she shot. Sergeant Johnson, who was 430 00:25:35,560 --> 00:25:38,920 Speaker 1: on the scene, testified and on the scene you hear 431 00:25:39,000 --> 00:25:41,960 Speaker 1: him say the guy was trying to take off with 432 00:25:42,000 --> 00:25:44,439 Speaker 1: me in the car. When he's trying to calm her 433 00:25:44,480 --> 00:25:46,480 Speaker 1: down and says, Kim, take a breath, take a breath, 434 00:25:46,520 --> 00:25:48,879 Speaker 1: You're okay. The guy was trying to take off with 435 00:25:48,920 --> 00:25:52,000 Speaker 1: me in the car. I mean, is it clear what happened? 436 00:25:52,000 --> 00:25:55,760 Speaker 1: Because he let go of the suspect's arm when he 437 00:25:55,760 --> 00:25:58,640 Speaker 1: heard Potter say she was going to use her taser. 438 00:25:59,400 --> 00:26:04,040 Speaker 1: So as right started drive off, would he have been 439 00:26:04,080 --> 00:26:07,280 Speaker 1: in danger? It's hard to say. You know, a very 440 00:26:07,320 --> 00:26:10,639 Speaker 1: close review of that video is going to be warranted. 441 00:26:11,480 --> 00:26:13,439 Speaker 1: It's hard to know because he was sort of in 442 00:26:13,600 --> 00:26:16,080 Speaker 1: over the front seat passenger and at one point holding 443 00:26:16,119 --> 00:26:19,119 Speaker 1: the gear box or holding the shifter. I think at 444 00:26:19,119 --> 00:26:21,720 Speaker 1: one point he was reaching out um to Mr Wright 445 00:26:21,840 --> 00:26:25,159 Speaker 1: as well. So I think a really close review and 446 00:26:25,200 --> 00:26:27,399 Speaker 1: a re review and a third and a fourth and 447 00:26:27,480 --> 00:26:29,480 Speaker 1: the twentieth review of that tape was going to be 448 00:26:29,520 --> 00:26:33,960 Speaker 1: super important. And noticed that on cross when the defense 449 00:26:34,000 --> 00:26:37,880 Speaker 1: attorney asked Johnson what would happen, he said, I'd be injured, 450 00:26:38,160 --> 00:26:42,240 Speaker 1: and then the defense attorney said seriously injured, maybe even dead, right, 451 00:26:42,400 --> 00:26:44,960 Speaker 1: So he sort of pulled that out of him. Does 452 00:26:45,000 --> 00:26:48,080 Speaker 1: the jury have to think that that officer might have died? 453 00:26:49,119 --> 00:26:51,320 Speaker 1: I don't think they have to think that that he 454 00:26:51,359 --> 00:26:53,320 Speaker 1: would have died. I mean, whether it was serious injury 455 00:26:53,400 --> 00:26:56,120 Speaker 1: or death. You know, certainly it's a more compelling argument 456 00:26:56,160 --> 00:26:58,479 Speaker 1: that she had to choose between two lives and you know, 457 00:26:58,640 --> 00:27:01,360 Speaker 1: like a split second, right, But the fact that there's 458 00:27:01,400 --> 00:27:04,000 Speaker 1: an officer inside of a car that might be you know, 459 00:27:04,119 --> 00:27:05,800 Speaker 1: driven off and he might have died or it might 460 00:27:05,800 --> 00:27:09,320 Speaker 1: have been seriously injured. I think the calculus is the same. Um. 461 00:27:09,359 --> 00:27:11,560 Speaker 1: You know, defense attorneys are allowed to lead on cross 462 00:27:11,640 --> 00:27:14,040 Speaker 1: though that's what he was doing to you know, get 463 00:27:14,040 --> 00:27:15,720 Speaker 1: the answer to where he wanted it to be. But 464 00:27:15,960 --> 00:27:18,639 Speaker 1: either way, I think it's sufficient for a jury to 465 00:27:18,680 --> 00:27:21,760 Speaker 1: reasonably conclude that, hey, she had to do what she 466 00:27:21,800 --> 00:27:23,719 Speaker 1: had to do in that moment to protect her partner 467 00:27:24,080 --> 00:27:27,720 Speaker 1: that he was asked whether Potter had the right to you, 468 00:27:27,880 --> 00:27:30,439 Speaker 1: this is Johnson again, whether Potter had the right to 469 00:27:30,560 --> 00:27:33,760 Speaker 1: use deadly force? Is it clear that she had the 470 00:27:33,880 --> 00:27:37,640 Speaker 1: right to use deadly force to prevent Dante right from 471 00:27:37,720 --> 00:27:42,000 Speaker 1: driving from the scene. Well, I think the way deadly 472 00:27:42,040 --> 00:27:44,360 Speaker 1: force comes in is just what we you know, we're 473 00:27:44,400 --> 00:27:47,280 Speaker 1: discussing in your previous question. If there was going to 474 00:27:47,359 --> 00:27:49,919 Speaker 1: be serious harm to somebody else or death, then I 475 00:27:49,960 --> 00:27:53,439 Speaker 1: think yes she did. If we're talking about what the 476 00:27:53,480 --> 00:27:56,719 Speaker 1: state wants us to believe, is the case that you know, 477 00:27:56,880 --> 00:28:00,400 Speaker 1: he had a warrant right and he you know, may 478 00:28:00,680 --> 00:28:03,359 Speaker 1: have had an order for protection or it may have 479 00:28:03,440 --> 00:28:06,119 Speaker 1: had you know, a gun issue out there, And I 480 00:28:06,119 --> 00:28:08,639 Speaker 1: think that gets a little dice here, But the fact 481 00:28:08,680 --> 00:28:12,280 Speaker 1: that that other officer was in the car right to 482 00:28:12,440 --> 00:28:15,560 Speaker 1: some degree for a period of time, I think that 483 00:28:15,600 --> 00:28:18,359 Speaker 1: a jury can reasonably conclude she had to do something 484 00:28:18,400 --> 00:28:21,480 Speaker 1: to prevent bodily harm to her fellow officer. I think 485 00:28:21,480 --> 00:28:25,960 Speaker 1: that's fair. So they pulled him over for driving with 486 00:28:26,040 --> 00:28:30,320 Speaker 1: expired license plates. And also, Minnesota has a law that 487 00:28:30,400 --> 00:28:34,719 Speaker 1: prohibits motorists from hanging air fresheners and other items from 488 00:28:34,760 --> 00:28:39,080 Speaker 1: their wors. Well, the way I've heard it argued is 489 00:28:39,080 --> 00:28:42,200 Speaker 1: that it's it's kind of a stupid law because number one, 490 00:28:42,240 --> 00:28:43,960 Speaker 1: a lot of people do it, whether it's an air 491 00:28:44,040 --> 00:28:47,440 Speaker 1: freshener or it's you know, some sort of decoration from 492 00:28:47,440 --> 00:28:50,120 Speaker 1: a rosary to a pair of you know, fuzzy dice, right, Like, 493 00:28:50,200 --> 00:28:52,760 Speaker 1: lots of people do it, and it doesn't necessarily have 494 00:28:52,840 --> 00:28:57,720 Speaker 1: anything to do with criminal activity. Right. So, um, I've 495 00:28:57,720 --> 00:28:59,840 Speaker 1: heard it argued in that way that you know, this 496 00:28:59,880 --> 00:29:02,160 Speaker 1: is something that will justify a lot of stuffs, but 497 00:29:02,280 --> 00:29:05,360 Speaker 1: really don't have a valid basis that that law has 498 00:29:05,400 --> 00:29:07,840 Speaker 1: been challenged a bunch and it's stayed on the book. 499 00:29:08,480 --> 00:29:11,240 Speaker 1: So it is a valid stop. Yeah, Okay, so a 500 00:29:11,320 --> 00:29:13,480 Speaker 1: valid stop. And then when they find out that there's 501 00:29:13,480 --> 00:29:17,120 Speaker 1: a warrant out for him, that raises their level of concern. 502 00:29:17,160 --> 00:29:20,800 Speaker 1: According to the defense, for sure, he's got a warrant own. 503 00:29:20,840 --> 00:29:23,120 Speaker 1: I think it's on a weapons charge. There's also I 504 00:29:23,160 --> 00:29:26,520 Speaker 1: think a question about who the front pass and who 505 00:29:26,560 --> 00:29:29,040 Speaker 1: the front seat passenger is because he's got a order 506 00:29:29,040 --> 00:29:31,240 Speaker 1: for protection out against him, So is he in the 507 00:29:31,280 --> 00:29:35,120 Speaker 1: presence of the person he's not supposed to be with, right, Um, 508 00:29:36,000 --> 00:29:38,280 Speaker 1: That kind of you know, ratchets things up. The other 509 00:29:38,320 --> 00:29:39,760 Speaker 1: part is when they get him out of the car 510 00:29:39,800 --> 00:29:42,080 Speaker 1: and they try to put handcuffs off on him. Office 511 00:29:42,120 --> 00:29:44,840 Speaker 1: to Lucky's pretty clear he's he tells him on video, 512 00:29:45,000 --> 00:29:47,720 Speaker 1: you know, don't tense up, man, don't do it. You know, 513 00:29:47,840 --> 00:29:50,240 Speaker 1: all of these things are you know, start of upping 514 00:29:50,240 --> 00:29:52,520 Speaker 1: the anti upping the antie. Then we've got the sergeants 515 00:29:52,560 --> 00:29:55,040 Speaker 1: who you know, half of body is inside the car 516 00:29:55,720 --> 00:29:57,960 Speaker 1: and it looks like it's pretty clear that Mr Wright 517 00:29:58,000 --> 00:30:01,400 Speaker 1: has intentions of driving away. I mean, one thing that 518 00:30:01,440 --> 00:30:04,080 Speaker 1: hasn't really been addressed is the danger he presented to 519 00:30:04,320 --> 00:30:07,840 Speaker 1: other people on the road. Anytime there's a fleeing right 520 00:30:07,880 --> 00:30:10,200 Speaker 1: and somebody's striving crazy to get rid of you know, 521 00:30:10,240 --> 00:30:14,160 Speaker 1: a police officer who's following them. It's dangerous to other 522 00:30:14,200 --> 00:30:17,120 Speaker 1: people on the road. Sometimes you can end like with 523 00:30:17,160 --> 00:30:19,520 Speaker 1: a crash. Sometimes it can end with you know, them 524 00:30:19,560 --> 00:30:22,479 Speaker 1: them throwing out items to get the car to stop, 525 00:30:22,600 --> 00:30:25,280 Speaker 1: like it presents a threat to you know, the public 526 00:30:25,320 --> 00:30:28,800 Speaker 1: at that point as well. She's a year veteran of 527 00:30:28,840 --> 00:30:33,280 Speaker 1: the force, She's had no incidents against her. I think 528 00:30:33,320 --> 00:30:35,840 Speaker 1: it is so critical that she take the stand and 529 00:30:35,920 --> 00:30:39,800 Speaker 1: she explained things from her perspective, what was going on 530 00:30:39,920 --> 00:30:42,640 Speaker 1: in her mind, what was happening, you know, in her heart, 531 00:30:42,760 --> 00:30:45,440 Speaker 1: Like why does she do the job of police officer. 532 00:30:45,600 --> 00:30:49,360 Speaker 1: I think that is so critical to really humanizing this case. 533 00:30:49,440 --> 00:30:52,160 Speaker 1: And and that's the only way the jury is going 534 00:30:52,200 --> 00:30:54,800 Speaker 1: to see things from her point of view. And the 535 00:30:54,840 --> 00:30:58,360 Speaker 1: way the descent structured their opening was to really humanize her. 536 00:30:58,560 --> 00:31:00,640 Speaker 1: And she has to be the person drive that home. 537 00:31:00,920 --> 00:31:03,240 Speaker 1: That's the only way that gets in. She's charged with 538 00:31:03,320 --> 00:31:06,640 Speaker 1: first degree man slaughter and second degree man slaughter. What 539 00:31:06,680 --> 00:31:10,080 Speaker 1: would each of those require? So I'll start with second degree. 540 00:31:10,120 --> 00:31:14,640 Speaker 1: Second degree man's thaughter requires essentially that she takes an 541 00:31:14,720 --> 00:31:19,560 Speaker 1: unjustified risk that's dangerous under the circumstances I think that's 542 00:31:19,560 --> 00:31:22,440 Speaker 1: pretty hard for them to prove, right. And then the 543 00:31:22,520 --> 00:31:25,840 Speaker 1: other charge I think is even more hard for the 544 00:31:25,880 --> 00:31:28,880 Speaker 1: state to prove because it it requires her to have 545 00:31:29,000 --> 00:31:32,680 Speaker 1: had some intent to assault him, right, which then gets 546 00:31:32,680 --> 00:31:34,800 Speaker 1: to this question of was it reasonable for her to 547 00:31:34,840 --> 00:31:37,120 Speaker 1: even pull out her taser? Was it reasonable for her 548 00:31:37,680 --> 00:31:39,880 Speaker 1: right to use the deadly force that she did under 549 00:31:39,920 --> 00:31:43,720 Speaker 1: the circumstances. So the first degree man slaughter charge really 550 00:31:43,760 --> 00:31:47,880 Speaker 1: puzzled me, and you know, they listened to the testimony 551 00:31:47,920 --> 00:31:50,600 Speaker 1: critically to figure out if that's really the angle that 552 00:31:50,800 --> 00:31:53,280 Speaker 1: you know that the state has that you know, she 553 00:31:53,320 --> 00:31:56,160 Speaker 1: had some kind of an intent to assault him. Um. 554 00:31:56,200 --> 00:32:00,000 Speaker 1: I think that's a pretty big stretch under the circumstances. Um. 555 00:32:00,160 --> 00:32:02,760 Speaker 1: But you know, the second reeman thought her. The charge 556 00:32:02,760 --> 00:32:06,400 Speaker 1: we typically see for officers in this situation is, you know, 557 00:32:06,480 --> 00:32:09,040 Speaker 1: did she take the risk that was too great? Right? 558 00:32:09,680 --> 00:32:12,440 Speaker 1: And that's why the defense continues to build up. You know, 559 00:32:12,680 --> 00:32:18,479 Speaker 1: all all of these um factors right from officer inside 560 00:32:18,520 --> 00:32:22,320 Speaker 1: the car, he's resisting arrest, he's about to take off, 561 00:32:22,520 --> 00:32:25,400 Speaker 1: who is the front seat passenger, and we know that 562 00:32:25,440 --> 00:32:28,040 Speaker 1: he had a warrant on a gun on a gun charge, right, 563 00:32:28,480 --> 00:32:31,280 Speaker 1: what's going to happen next, and she had seconds to 564 00:32:31,320 --> 00:32:34,280 Speaker 1: think about it. That that that's what I think, you know, 565 00:32:34,360 --> 00:32:37,640 Speaker 1: makes this analysis so much easier than, for example, the 566 00:32:37,640 --> 00:32:42,120 Speaker 1: analysis and the Chauvin trial, right, And by easier, I 567 00:32:42,120 --> 00:32:44,480 Speaker 1: mean easier for a jury to look at it through 568 00:32:44,480 --> 00:32:47,400 Speaker 1: the defendants eyes and and equit them because she had 569 00:32:47,440 --> 00:32:51,400 Speaker 1: seconds to react. This all went really fast, harder furtheritors 570 00:32:51,440 --> 00:32:56,880 Speaker 1: to get you know, into Chauvin's um perspective that he 571 00:32:56,880 --> 00:32:59,720 Speaker 1: should just keep kneeling on somebody for nine minutes. Right, 572 00:33:00,280 --> 00:33:03,040 Speaker 1: they're apples and oranges. And in this case, I think 573 00:33:03,080 --> 00:33:05,880 Speaker 1: that the video is still compelling for her, all of it. 574 00:33:06,680 --> 00:33:10,719 Speaker 1: So obviously she made a mistake. Does that lead to 575 00:33:11,000 --> 00:33:15,560 Speaker 1: second degree manslaughter? Though not if you think her choice, 576 00:33:15,840 --> 00:33:18,120 Speaker 1: you know, to you know, pull that phaser out was 577 00:33:18,160 --> 00:33:21,560 Speaker 1: reasonable under the circumstances. It's not a question of, you know, 578 00:33:21,640 --> 00:33:23,280 Speaker 1: wasn't reasonable for her to pull a gun if you 579 00:33:23,280 --> 00:33:27,160 Speaker 1: believe she committed you know, that that move and error, right, 580 00:33:27,400 --> 00:33:29,480 Speaker 1: she thought she had her taser, but she reached her gun. 581 00:33:29,560 --> 00:33:31,840 Speaker 1: That's the mistake. But if you believe she had a 582 00:33:31,880 --> 00:33:34,840 Speaker 1: basis to try to stop this person from taking off, 583 00:33:35,520 --> 00:33:37,800 Speaker 1: that her actions are justified. And there's no crime here 584 00:33:38,160 --> 00:33:41,480 Speaker 1: because this is you know, this is the third case 585 00:33:41,520 --> 00:33:44,480 Speaker 1: that I can think of involving a black man being 586 00:33:44,600 --> 00:33:48,840 Speaker 1: killed by a police officer in Minnesota in recent years. 587 00:33:49,400 --> 00:33:52,640 Speaker 1: Do you think that there would be outcry if she 588 00:33:53,760 --> 00:33:58,040 Speaker 1: is found not guilty. Probably. I mean what I'm noticing, 589 00:33:58,080 --> 00:34:01,280 Speaker 1: even from you know, the attorney com and Terry, you know, 590 00:34:01,720 --> 00:34:05,040 Speaker 1: different stations and outlets are are showcasing, is that the 591 00:34:05,040 --> 00:34:08,360 Speaker 1: attorneys are really, you know, of different minds about this. 592 00:34:09,280 --> 00:34:12,960 Speaker 1: And you know, I suspect that there is a certain 593 00:34:13,239 --> 00:34:17,160 Speaker 1: you know population who you know, are going to say, wow, 594 00:34:17,440 --> 00:34:20,600 Speaker 1: you know, this is really a miscarriage of justice if 595 00:34:20,640 --> 00:34:22,520 Speaker 1: there's not a conviction. And I think that there is 596 00:34:22,560 --> 00:34:26,440 Speaker 1: another camp that will say, well, you know, finally this 597 00:34:26,520 --> 00:34:29,040 Speaker 1: lady got acquitted because this is really truly mistake in 598 00:34:29,040 --> 00:34:31,759 Speaker 1: our case is so different from the other officers that 599 00:34:31,800 --> 00:34:34,440 Speaker 1: were required to go on trial. I think it'll be 600 00:34:34,560 --> 00:34:39,360 Speaker 1: very divisive. Thanks Krista. That's former public defender Krista Grosschek, 601 00:34:39,640 --> 00:34:42,840 Speaker 1: managing partner of Groschek Law. And that's safe In this 602 00:34:43,000 --> 00:34:46,120 Speaker 1: edition of the Bloomberg Law Show, I'm June Grosso and 603 00:34:46,160 --> 00:34:47,680 Speaker 1: you're listening to Bloomberg