Speaker 1: This is Bloombird Law with June Brusso from Bloombird Radio
Speaker 1: Safe s but tell her Swift can't shake off a
Speaker 1: lawsuit that claims she stole some of the phrases in
Speaker 1: her hit song The pop star is going to have
Speaker 1: to face a jury after a federal judge rule that
Speaker 1: facts in the case warren a trial. Songwriter Sean Hall
Speaker 1: and Nathan Butler claim that Swift ripped off certain phrases
Speaker 1: from their two thousand one song play is Gonna Play.
Speaker 1: Listen to a comparison of the contested lyrics from both songs,
Speaker 1: Jay Heyday Chuck joining me as intellectual property litigator Terence
Speaker 1: ross a partner Caton Uten Rosenman. So Terry tell us
Speaker 1: a little about the lawsuit. So, this lawsuit is about
Speaker 1: Taylor swifts monster song shake It Off, which debuted at
Speaker 1: number one on the Billboard Hot one hundred chart and
Speaker 1: remained there for fifty weeks, almost an entire year, and
Speaker 1: has sold more than nine million copies. So it's a
Speaker 1: monster hit recording. And the plaintiff song, which also did
Speaker 1: quite well, quite frankly called Plays, was on the Billboard
Speaker 1: Hot one, never reached number one, but was on it
Speaker 1: for a while and got some playtime quite frankly, and
Speaker 1: writers of the play as song have alleged that their
Speaker 1: chorus is so substantially similar to the chorus and Taylor
Speaker 1: Swifts shake it off that there had to have been
Speaker 1: copyright infringement. It seems like those phrases that they're talking
Speaker 1: about are just common phrases. It doesn't seem like there's
Speaker 1: anything original about them. Well, that was the original argument
Speaker 1: that Taylor Swift made when she was first sued. She
Speaker 1: filed a motion to dismiss the district court, which is
Speaker 1: the trial court in the federal court system, and she
Speaker 1: argued that these were common phrases that were not copyrightable,
Speaker 1: they were not entitled to protection, and the district court
Speaker 1: judge agreed and dismissed the lawsuit, and the plaintiffs took
Speaker 1: them up to the Ninth Circuit, and the Ninth Circuit
Speaker 1: reversed and said essentially that the lower court was focused
Speaker 1: too much on comparing the words as words and failed
Speaker 1: to consider that the arrangement of the words in the
Speaker 1: chorus across the course were sufficient to be copyrightable. No
Speaker 1: judgment on whether or not there was infringement the Ninth
Speaker 1: Circuit simply said, there is copyright protection here, and therefore
Speaker 1: the case was sent back to the district Court in
Speaker 1: California for further proceedings. And that's where we are now.
Speaker 1: With this new decision by the district court, Swiss defense
Speaker 1: gets a little nuanced for the non musical tell us
Speaker 1: what her defense is here. So when the case got
Speaker 1: back to the district court, the defendants and Taylor Swift
Speaker 1: and her musical companies filed list known as a motion
Speaker 1: for some re judgment, which says, you know, based on
Speaker 1: all the facts of record, there is no legal claim here,
Speaker 1: no reasonable jury would ever find for the plaintiff, and
Speaker 1: therefore we shouldn't have a trial. And the court rejected
Speaker 1: that motion denied it, so there will be a trial.
Speaker 1: But what was fundamentally at issue and came on this
Speaker 1: case is not about the music. This is exclusively about
Speaker 1: the lyrics of the two songs, and that makes it
Speaker 1: different from a lot of the cases we've talked about before,
Speaker 1: like Blurredlines and Ed Sharon's songs. It's only about the
Speaker 1: lyrics here. And what Taylor Swift said was that there
Speaker 1: simply is not a substantial similarity between the two songs
Speaker 1: with respect to the copyrighted elements. The mere fact that
Speaker 1: they both mentioned players going to play and hater is
Speaker 1: going to hate doesn't mean that she copied in an
Speaker 1: inappropriate manner that constituted infringement. So the same judge who
Speaker 1: dismissed the lawsuit in is now allowing the lawsuit to
Speaker 1: go forward. Well, he was ordered to allow the lawsuit
Speaker 1: to go forward by the Ninth Circuit. The way copyright
Speaker 1: law works is that there's a two part test that
Speaker 1: is applied to determine whether or not there is infringement.
Speaker 1: The first part is called the extrinsic test that's performed
Speaker 1: by the judge, and then the second part is called
Speaker 1: the intrinsic test, which is performed by the jury. And
Speaker 1: under the part that's performed by the judge, the extrinsic test,
Speaker 1: you look at external factors that are considered objective factors
Speaker 1: to determine at an analytical level whether or not there's
Speaker 1: a case of substantial similarity. And expert opinions from musicologists
Speaker 1: come in at this point very heavily, and that's a
Speaker 1: decision that's left to the judge, and the determination he
Speaker 1: has to make is whether or not in looking at
Speaker 1: these external factors there is sufficient belief that no reasonable
Speaker 1: jury could find infringement. And if he agrees with that,
Speaker 1: then he can cut off the case, not let it
Speaker 1: go to the the jury. But if he has any doubts,
Speaker 1: he has to allow the case to go on to
Speaker 1: part two, which is the subjective or intrinsic test, which
Speaker 1: has to be performed by a jury stand trial, in
Speaker 1: which they look at the totality of the two works
Speaker 1: and make a subjective judgment as to substantial similarity. The
Speaker 1: judge was really sort of stuck here because there is
Speaker 1: some similarity between the words and the way the words
Speaker 1: are arranged. He really felt, I think he was correct
Speaker 1: that he had to let this pass on to the
Speaker 1: jury and see what they thought about the total feeling
Speaker 1: of whether or not there was a substantial similarity. Although
Speaker 1: he mentioned that he thought taylor Swiss defense was a
Speaker 1: pretty good defense and might farewell with the jury. So
Speaker 1: now let's go to his opinion where he talks about
Speaker 1: the factors to be considered. He said, the Ninth Circuit
Speaker 1: has acknowledged that it has never announced a uniform set
Speaker 1: of factors for analyzing a musical composition under the extrinsic test,
Speaker 1: and that it did not intend to change that precedent,
Speaker 1: although it recognizes the difficulties faced by the district court.
Speaker 1: So the Ninth Circuit basically says, yes, this test is confusing,
Speaker 1: but we're not going to help you out. Yes, And
Speaker 1: this is the problem that district judges have with copyright cases.
Speaker 1: The Courts of Appeal have said, you have a role
Speaker 1: to play as a gatekeeper as to whether or not
Speaker 1: these cases go to trial and get decided by a jury,
Speaker 1: but we're not going to give you a list of
Speaker 1: factors to consider. And he references a very famous Ninth
Speaker 1: Circuit case that involved Mariah Carey's song Thank God I
Speaker 1: Found You, which also involved alleged similarities in the chorus
Speaker 1: of two songs. And in that case, as the judges
Speaker 1: accurately quoted the Ninth Sir came right out and said, book,
Speaker 1: we can't come up with a list of standards for
Speaker 1: the district courts to consider. There's no checklist. You just
Speaker 1: have to consider anything that seems relevant to you. And
Speaker 1: that's a very ambiguous thing to tell the judge who
Speaker 1: actually has to on a day to day basis, and
Speaker 1: Minister Justice in the copyright round, and to certain extent
Speaker 1: it's unfair, Although I get what the nice story is
Speaker 1: saying is it's hard to come up with a comprehensive
Speaker 1: list in other areas of copyright law. That hasn't stopped
Speaker 1: us from coming on police with partial list. Fair Youth
Speaker 1: have four factors that mandatorially must be considered Court of
Speaker 1: the Supreme Court, but you can bring in other factors
Speaker 1: that may be relevant. I struggle to understand why we
Speaker 1: can't do that with respect to this substantial similarity test,
Speaker 1: at least with respect to the extrinsic prong of the test.
Speaker 1: So is to help out district court judges. What's the
Speaker 1: biggest obstacle for the plaintiffs at trial? The problem I
Speaker 1: think the plaintives actually face here is Taylor Swift being
Speaker 1: the defendant. Taylor Swift is not just any work boarding artists.
Speaker 1: Taylor Swift is iconic. Take one of my daughter's Caroline,
Speaker 1: for example. She just loves Taylor's wife and could never
Speaker 1: believe that Taylor Swift copied anybody else's work because she
Speaker 1: is so awesome. Now you're going to get a jury
Speaker 1: pool that has many people that feel that exact same way,
Speaker 1: and the plaintiff will have no chance to convince them.
Speaker 1: And yes, they will get the opportunity of law dear
Speaker 1: them and ask them questions to try to sort out
Speaker 1: people who may be prejudiced. But the reality is a
Speaker 1: lot of juris, particularly Taylor's Swift Sands, would die to
Speaker 1: serve on this jury. And actually you get to see
Speaker 1: Taylor Swift up close and personal testifying, and so they're
Speaker 1: gonna be working real hard to get onto the jury
Speaker 1: even if they're not being completely forthright during law dear,
Speaker 1: and those jurors are gonna be in the defendant's pocket
Speaker 1: from day one, and there'll be nothing that can convince them.
Speaker 1: And that is the real problem that the plaintiffs have
Speaker 1: here at trial, is that they're up against Taylor Swift
Speaker 1: and her legion of fans. Is there a chance of
Speaker 1: settlement here? It's been going on since twenty seventeen, So
Speaker 1: I have no inside information on settlement negotiations. I'll simply
Speaker 1: note that Taylor Swift has placed her respect and honor
Speaker 1: as one of America's great singer songwriters above considerations as
Speaker 1: to defense costs. Typically you get settlements one the defendant
Speaker 1: as this just isn't worth the money I'm paying my attorneys,
Speaker 1: I'll settle for a low dollar amount, even though I
Speaker 1: don't believe I did anything wrong. I don't think that's
Speaker 1: going to happen with Taylor Swift. This is one of
Speaker 1: her iconic songs, and I don't think she's going to
Speaker 1: be wanting to be in a position where people would say, ah,
Speaker 1: she she took the lyrics from somebody else. Just to
Speaker 1: talk about the line of cases here, there were several
Speaker 1: high profile copyright infringement lawsuits. The Blurredline case in particular,
Speaker 1: there was a concern that artist songwriters would face a
Speaker 1: ton of lawsuits. Did the tide change with the led
Speaker 1: Zeppelin suit? I certainly at the pendulum was swinging back
Speaker 1: in favor of more reasoned review of these music cases.
Speaker 1: Keep in mind that this is a lyrics case. Blurredlines,
Speaker 1: led Zeppelin at Sharon cases involved the actual tunes, the notes,
Speaker 1: the music, which are very difficult to analyze for a
Speaker 1: districred judge or lay jurors. Lyrics are something that you
Speaker 1: really don't expect to have as much difficulty with, and
Speaker 1: I will say I was surprised that the ninth circuit
Speaker 1: reversed and found that there was something about the arrangement
Speaker 1: sequencing in the course that was copyrightable. The general black
Speaker 1: letter rule of law is that short phrases are not copyrightable.
Speaker 1: But here the court emphasized the arrangement sequencing of these
Speaker 1: short phrases, and that is very reminiscent of other music
Speaker 1: cases involving the tunes, the notes, and so that's introduced
Speaker 1: tailment of complexity here, and we'll just have to see
Speaker 1: what a jury things. I think there is some possibility
Speaker 1: here that a jury will just go off on their
Speaker 1: instincts and say that doesn't that that doesn't sound right
Speaker 1: to me, that that's taking of things that are in
Speaker 1: common parlance. But we'll see that's taking of things that
Speaker 1: are in common parlance. But we'll see. So in light
Speaker 1: of Bruce Springsteen selling his music catalog for half a
Speaker 1: billion dollars, tell us about the process Taylor Swift is
Speaker 1: in process of re re releasing the recordings now releasing
Speaker 1: the re recordings of her first six albums. Just tell
Speaker 1: us why. So it would take us an entire another
Speaker 1: episode to discuss how this came to be. But essentially,
Speaker 1: as a very young artist and this is common in
Speaker 1: the music business. Taylor Swift lost the what are called
Speaker 1: the mechanical rights to her songs. She does not have
Speaker 1: control over the actual recordings the tapes, as they used
Speaker 1: to say, and tried very hard to get control over them,
Speaker 1: not purely for financial reasons, but also because she did
Speaker 1: not want her music and her name being free to
Speaker 1: be bought and sold as it appeared to be happening.
Speaker 1: And she was unsuccessful in getting control over those early
Speaker 1: works back and so UM she has set up out
Speaker 1: upon a process of re recording all of her early works.
Speaker 1: Each one has the same title, except in parses afterwards,
Speaker 1: it's Taylor's version, UM, and this will give her control
Speaker 1: over the mechanical rights to those particular covers, if you will,
Speaker 1: of her own original work. If the Bruce Springsteen situation
Speaker 1: is very different from Taylor's Swiss situation, UM, Bruce Springsteen
Speaker 1: is sort of at the end of his recording career um,
Speaker 1: and we wish him many many years of good life ahead,
Speaker 1: but also a sort of the end of his life journey.
Speaker 1: Taylor Swift is very much at the beginning of it,
Speaker 1: and it is still at the forefront of her mind.
Speaker 1: That she has decades and decades of recording ahead and
Speaker 1: and just living experience, and and and wants to have
Speaker 1: control over her name and her songs. You can't blame
Speaker 1: her one bit um for for that goal. And so
Speaker 1: she is taking completely different approach than what Bruce Springsteen
Speaker 1: recently UM did. She's also had UM at a much
Speaker 1: earlier point in her life success financially with her recordings.
Speaker 1: I've just been reading Steven van Zant's Um autobiography, Bruce
Speaker 1: Springsteen's Best Friend, talking about their early days, and you know,
Speaker 1: despite so much great music that Bruce Springsteen and the
Speaker 1: Easter Band produced in those those early days, financially, they
Speaker 1: weren't seeing a lot of the rewards and did not
Speaker 1: have the same sort of lifestyle that Taylor Swifted modern
Speaker 1: recording artists seemed to have with their success and and
Speaker 1: so respect. You know, Bruce brings Rosie a number of
Speaker 1: children trying to monetize and now the later part of
Speaker 1: his life um all of those works, whereas Taylish was
Speaker 1: still at the start of her life and career. Thanks
Speaker 1: for being on the show, Terry. That's Terence Fross a partner.
Speaker 1: Catn Uten Rosenman hedge funds, beware. The United States Department
Speaker 1: of Justice is digging into your symbionic relationship with research firms,
Speaker 1: hunting for signs you tried to engineer stunning stock drops
Speaker 1: or engaged in insider trading. It's an investigation that's thrilled
Speaker 1: legions of small investors, as trading in at least several
Speaker 1: dozen stocks is being examined, according to Bloomberg sources. Joining
Speaker 1: me is an expert in the area, Professor John Coffey
Speaker 1: of Columbia Law School. Jack tell us about this investigation
Speaker 1: and when it's started, well, this is something they've been
Speaker 1: planning for at least six months or more. They've consulted
Speaker 1: with some of the leading financial economists in the country.
Speaker 1: They are doing a very careful review of a large
Speaker 1: number of cases. But I think what has most bothered
Speaker 1: them is the exploitation of a short interval between when
Speaker 1: a group of short sellers published negative research, often on
Speaker 1: an anonymous basis or a pseudo anonymous basis, and then
Speaker 1: prayed heavily in the period between when they release it
Speaker 1: on one day and the next day when the company
Speaker 1: is able to respond. When the company responds, it may
Speaker 1: be able to come back with a convincing explanation or rebuttal,
Speaker 1: and the market equilibrates and there's not much of a decline,
Speaker 1: but for that first day there may be a drop
Speaker 1: or something in the stock, and the short sellers make
Speaker 1: out like bandits. That doesn't look like it's fair to
Speaker 1: the small shareholders who tend to panic when they first
Speaker 1: hear the news and then get reassured when the company responds,
Speaker 1: but then it's too late that they've already sold hedge
Speaker 1: bonds and researchers do have a relationship. That's legal. It
Speaker 1: is certainly legal, but here is the question. You can
Speaker 1: certainly hire researchers, but it is arguably deceptive to publish
Speaker 1: a report as independent research, which gives a greater credibility
Speaker 1: in the public's mind, when in fact you have already
Speaker 1: commissioned it and paid for an advance, and you asked
Speaker 1: them to research a particular target that you're interested in.
Speaker 1: So our prosecutors looking for internal documents then of a relationship,
Speaker 1: I think they will be I think that they're going
Speaker 1: to want cases that have what lawyers typically called badges
Speaker 1: of fraud, something where there's been a bribe but there's
Speaker 1: been clear insighter trading when you've done something else so
Speaker 1: that doesn't just look like ordinary short selling. You have
Speaker 1: to remember that short sellers are both the heroes and
Speaker 1: the rogues of the market. They have uncovered the biggest
Speaker 1: frauds which often escaped the government, often escaped the accountants,
Speaker 1: and often escape everybody except the profit motivated short seller.
Speaker 1: In the last two years, cases like the Lucky Coffee
Speaker 1: case in China or the wire card case in Germany,
Speaker 1: billions were lost and none of the regular gatekeepers responded
Speaker 1: in any way until the short sellers came in. Remember
Speaker 1: it with short sellers who caught en Ron when the
Speaker 1: accountants MR and the sec MR and no one else
Speaker 1: saw it. So we need them. They can be heroes
Speaker 1: of the market, but they can also try to make quick,
Speaker 1: cheap profits, exploiting this time differential or providing research that
Speaker 1: they have paid for and focused in a way that's
Speaker 1: quite harsh without disclosing that this was commission research rather
Speaker 1: than independent research. They were celebrating about this investigation on
Speaker 1: platforms such as Reddit, Stock, Twits, and Twitter. Those are
Speaker 1: exactly the retail customers who feel they are exploited by
Speaker 1: short sellers because they see the bad news and they
Speaker 1: rest to protect themselves, and the next day or the
Speaker 1: day after that, the company responds. It looks like only
Speaker 1: a small difference in their positions. Is this just another
Speaker 1: front in the Department of Justices inquiry or is this
Speaker 1: a new inquiry? Well, I think it's nothing is totally new,
Speaker 1: But I think there's much in this that is new.
Speaker 1: This is the Department of Justice bringing a criminal investigation,
Speaker 1: not the sec bringing some charges and settling quietly. People
Speaker 1: are going to be staced with prison if they are
Speaker 1: found to have deliberately misled or hidden key facts, particularly
Speaker 1: the use of the pseudonymous article. That is, rather than
Speaker 1: putting it out in your own name, you put it
Speaker 1: out in some new name that you just create, the
Speaker 1: Avenging Angel, spider Man, whatever, and that it looks credible.
Speaker 1: But if you knew this was the guys that gave
Speaker 1: you some overstated advice six times in the last year,
Speaker 1: you give it less weight. So you use this new
Speaker 1: name and help that will give it greater credibility, or
Speaker 1: at least won't carry the negative associations that the short
Speaker 1: sellers have already created. So how challenging would it be
Speaker 1: for prosecutors to bring charges against short sellers and win.
Speaker 1: It depends on the evidence they get, which is why
Speaker 1: I hope they hold back until they have a case
Speaker 1: with strong evidence. If their government can show that you
Speaker 1: were paying people to give them confidential information about their employer,
Speaker 1: that would be a case it looks like they're paying
Speaker 1: people to breach their produciary duties. Or if you get
Speaker 1: other cases of insider trading or bribery or deliberate deception.
Speaker 1: If you call this independent research when you half wrote it,
Speaker 1: you are a short center. You are known to be
Speaker 1: on this side of the aisle, and no one totally
Speaker 1: trusts you when you put out what you call independent research.
Speaker 1: But it may be that you wrote half that independent
Speaker 1: research and you edited so they said exactly what you wanted.
Speaker 1: That can be deceptive. I was sort of surprised the
Speaker 1: investigation is being handled by federal prosecutors in Los Angeles.
Speaker 1: I thought that prosecutors in Manhattan usually handle these types
Speaker 1: of financial crimes. Well, often these kind of cases are
Speaker 1: in the Southern District in New York. But remember, the
Speaker 1: government has only so much resources. And these are the
Speaker 1: same people, by the way, leading this investigation who recently
Speaker 1: won some major and unprecedented cases in which criminal violations
Speaker 1: were found for spoofing, so they have one original case.
Speaker 1: In the past, you and about a dozen other prominent
Speaker 1: securities law professors have urged the sec to do certain things.
Speaker 1: Tell us what you want you think again, I'm told
Speaker 1: you that there is this exploitation of this narrow window
Speaker 1: between when you put out negative research and immediately trade
Speaker 1: on it and when the company responds. I think there
Speaker 1: should be some way to close that window further so
Speaker 1: that you can't make a bundle of money on the
Speaker 1: hour or two in which no one else is commenting,
Speaker 1: and that has been happening. We also have a problem
Speaker 1: with what I'll call the pseudonymous research, where you use
Speaker 1: some new entity that no one's ever heard of, Spider Man,
Speaker 1: Avenging Angel, or something like some kind of fancy new name,
Speaker 1: and you may have to just may have to disclose
Speaker 1: who is behind that. There's First Amendment problems there, to
Speaker 1: be sure, because we don't like to restrict speech. But
Speaker 1: hiding your identity when you have a strong reputation, which
Speaker 1: will lead investors not to trust you as much, that
Speaker 1: strikes me something that could also be misleading. So lawmakers
Speaker 1: have held several hearings following that meme stock trading frenzy
Speaker 1: in January. Do you expect lawmakers or do you think
Speaker 1: lawmakers should do something here? Well, I don't think they
Speaker 1: will because this is complex and lawmakers like to have
Speaker 1: a simple target. I think the SEC could do more
Speaker 1: both with respect to short selling rules and the general problems.
Speaker 1: When you look at the game Stop in the A
Speaker 1: m C Trading you see villains on post sides. You
Speaker 1: see the game of vocation of the market, people turning
Speaker 1: trading into a game at places like Robert Hood, which
Speaker 1: creates an excessive incentive to trade and to trade on options,
Speaker 1: which is very, very dangerous. On the other side, you
Speaker 1: see short sellers. Gave Stop was in part an attempt
Speaker 1: to squeeze the short sellers, and it did squeeze them,
Speaker 1: and perhaps they deserve to be squeezed. But we had
Speaker 1: people on one side who were trading excessively because of
Speaker 1: all these new apps that make it so simple and
Speaker 1: so attractive, and because they're told that it's free. It's
Speaker 1: not really free, but they're told that. On the other side,
Speaker 1: we have people who were engaged in heavy shorting of
Speaker 1: a stock like game Stop, which to most traditional investors,
Speaker 1: looks like a very shaky company. Oh, it looks like
Speaker 1: it's the future of the world to those people in
Speaker 1: the Men and the mem Stock group. On riddit, Thanks Jack.
Speaker 1: That's Professor John Coffee at Columbia Law School. Former Minnesota
Speaker 1: police officer Kim Potter is on trial for the fatal
Speaker 1: shooting of twenty year old Dante Right during a traffic
Speaker 1: stop in April. Potter says she meant to draw her
Speaker 1: taser to stop Right from driving away as officers tried
Speaker 1: to arrest him on an outstanding warrant for weapons possession,
Speaker 1: but she drew her gun by mistake. Potter is white
Speaker 1: and Right was black, and his death in the middle
Speaker 1: of the trial of former Minneapolis police officer Derek Chauvin
Speaker 1: for the death of George Floyd set off several nights
Speaker 1: of angry protests. Joining me as former public defender Krista Groshek,
Speaker 1: managing attorney of Grossek Law, the prosecution played this video
Speaker 1: of Potter right after she shot Right, hysterical rocking back
Speaker 1: and forth while laying face down on the lawn with
Speaker 1: her head in her hands and saying, I don't know
Speaker 1: I don't know what happened. Which way does that cut?
Speaker 1: Does that work for the prosecution or for the defense?
Speaker 1: I think it works great for the defense. I think
Speaker 1: that a jury is going to have a hard time
Speaker 1: convicting somebody that reacted like that, Like this was clearly
Speaker 1: an accident, it was on planned. She was immediately remorseful.
Speaker 1: She's also fearful that she'd be facing charges herself. So
Speaker 1: her worst nightmare came true. But it wasn't a stretch
Speaker 1: for her to think she'd be charged. I mean, in
Speaker 1: this day and age of police scrutiny, and of course
Speaker 1: you know George Floyd was going on at the time
Speaker 1: of the stop. I think this is really powerful evidence
Speaker 1: of the defense. I really do. One part of it,
Speaker 1: as you mentioned, she said I'm going to prison, Oh
Speaker 1: my god, what am I going to do now? Mike.
Speaker 1: The jury interpret from that that she was worried about
Speaker 1: herself rather than about the boy she just killed. I thought,
Speaker 1: at the beginning of that transcript, if you will, she
Speaker 1: had said, oh my god, I just I just shot
Speaker 1: him where I just killed him. I just killed killed
Speaker 1: a man. What we know about Potter is that, you know,
Speaker 1: I don't think she has seen a lot of street action,
Speaker 1: if you will, like she she did a fair amount
Speaker 1: of all I guess hostage negotiation, and historically she's been
Speaker 1: able to say the right thing to talk people down
Speaker 1: right so she doesn't have to grab her gun on
Speaker 1: her taser. What I thought was super powerful about the
Speaker 1: defense opening, and I believe this is true that she's
Speaker 1: never had to use her taser before, never, So I
Speaker 1: think this was a reaction from somebody that you know,
Speaker 1: thought pretty clearly based upon how everything went down. She
Speaker 1: had good reason to believe that he was dead and
Speaker 1: there really wasn't much to be done, and she was
Speaker 1: also not in a location, you know, near him to
Speaker 1: do something. I mean, she just absolutely collapsed really at
Speaker 1: the scene of where she shot. Sergeant Johnson, who was
Speaker 1: on the scene, testified and on the scene you hear
Speaker 1: him say the guy was trying to take off with
Speaker 1: me in the car. When he's trying to calm her
Speaker 1: down and says, Kim, take a breath, take a breath,
Speaker 1: You're okay. The guy was trying to take off with
Speaker 1: me in the car. I mean, is it clear what happened?
Speaker 1: Because he let go of the suspect's arm when he
Speaker 1: heard Potter say she was going to use her taser.
Speaker 1: So as right started drive off, would he have been
Speaker 1: in danger? It's hard to say. You know, a very
Speaker 1: close review of that video is going to be warranted.
Speaker 1: It's hard to know because he was sort of in
Speaker 1: over the front seat passenger and at one point holding
Speaker 1: the gear box or holding the shifter. I think at
Speaker 1: one point he was reaching out um to Mr Wright
Speaker 1: as well. So I think a really close review and
Speaker 1: a re review and a third and a fourth and
Speaker 1: the twentieth review of that tape was going to be
Speaker 1: super important. And noticed that on cross when the defense
Speaker 1: attorney asked Johnson what would happen, he said, I'd be injured,
Speaker 1: and then the defense attorney said seriously injured, maybe even dead, right,
Speaker 1: So he sort of pulled that out of him. Does
Speaker 1: the jury have to think that that officer might have died?
Speaker 1: I don't think they have to think that that he
Speaker 1: would have died. I mean, whether it was serious injury
Speaker 1: or death. You know, certainly it's a more compelling argument
Speaker 1: that she had to choose between two lives and you know,
Speaker 1: like a split second, right, But the fact that there's
Speaker 1: an officer inside of a car that might be you know,
Speaker 1: driven off and he might have died or it might
Speaker 1: have been seriously injured. I think the calculus is the same. Um.
Speaker 1: You know, defense attorneys are allowed to lead on cross
Speaker 1: though that's what he was doing to you know, get
Speaker 1: the answer to where he wanted it to be. But
Speaker 1: either way, I think it's sufficient for a jury to
Speaker 1: reasonably conclude that, hey, she had to do what she
Speaker 1: had to do in that moment to protect her partner
Speaker 1: that he was asked whether Potter had the right to you,
Speaker 1: this is Johnson again, whether Potter had the right to
Speaker 1: use deadly force? Is it clear that she had the
Speaker 1: right to use deadly force to prevent Dante right from
Speaker 1: driving from the scene. Well, I think the way deadly
Speaker 1: force comes in is just what we you know, we're
Speaker 1: discussing in your previous question. If there was going to
Speaker 1: be serious harm to somebody else or death, then I
Speaker 1: think yes she did. If we're talking about what the
Speaker 1: state wants us to believe, is the case that you know,
Speaker 1: he had a warrant right and he you know, may
Speaker 1: have had an order for protection or it may have
Speaker 1: had you know, a gun issue out there, And I
Speaker 1: think that gets a little dice here, But the fact
Speaker 1: that that other officer was in the car right to
Speaker 1: some degree for a period of time, I think that
Speaker 1: a jury can reasonably conclude she had to do something
Speaker 1: to prevent bodily harm to her fellow officer. I think
Speaker 1: that's fair. So they pulled him over for driving with
Speaker 1: expired license plates. And also, Minnesota has a law that
Speaker 1: prohibits motorists from hanging air fresheners and other items from
Speaker 1: their wors. Well, the way I've heard it argued is
Speaker 1: that it's it's kind of a stupid law because number one,
Speaker 1: a lot of people do it, whether it's an air
Speaker 1: freshener or it's you know, some sort of decoration from
Speaker 1: a rosary to a pair of you know, fuzzy dice, right, Like,
Speaker 1: lots of people do it, and it doesn't necessarily have
Speaker 1: anything to do with criminal activity. Right. So, um, I've
Speaker 1: heard it argued in that way that you know, this
Speaker 1: is something that will justify a lot of stuffs, but
Speaker 1: really don't have a valid basis that that law has
Speaker 1: been challenged a bunch and it's stayed on the book.
Speaker 1: So it is a valid stop. Yeah, Okay, so a
Speaker 1: valid stop. And then when they find out that there's
Speaker 1: a warrant out for him, that raises their level of concern.
Speaker 1: According to the defense, for sure, he's got a warrant own.
Speaker 1: I think it's on a weapons charge. There's also I
Speaker 1: think a question about who the front pass and who
Speaker 1: the front seat passenger is because he's got a order
Speaker 1: for protection out against him, So is he in the
Speaker 1: presence of the person he's not supposed to be with, right, Um,
Speaker 1: That kind of you know, ratchets things up. The other
Speaker 1: part is when they get him out of the car
Speaker 1: and they try to put handcuffs off on him. Office
Speaker 1: to Lucky's pretty clear he's he tells him on video,
Speaker 1: you know, don't tense up, man, don't do it. You know,
Speaker 1: all of these things are you know, start of upping
Speaker 1: the anti upping the antie. Then we've got the sergeants
Speaker 1: who you know, half of body is inside the car
Speaker 1: and it looks like it's pretty clear that Mr Wright
Speaker 1: has intentions of driving away. I mean, one thing that
Speaker 1: hasn't really been addressed is the danger he presented to
Speaker 1: other people on the road. Anytime there's a fleeing right
Speaker 1: and somebody's striving crazy to get rid of you know,
Speaker 1: a police officer who's following them. It's dangerous to other
Speaker 1: people on the road. Sometimes you can end like with
Speaker 1: a crash. Sometimes it can end with you know, them
Speaker 1: them throwing out items to get the car to stop,
Speaker 1: like it presents a threat to you know, the public
Speaker 1: at that point as well. She's a year veteran of
Speaker 1: the force, She's had no incidents against her. I think
Speaker 1: it is so critical that she take the stand and
Speaker 1: she explained things from her perspective, what was going on
Speaker 1: in her mind, what was happening, you know, in her heart,
Speaker 1: Like why does she do the job of police officer.
Speaker 1: I think that is so critical to really humanizing this case.
Speaker 1: And and that's the only way the jury is going
Speaker 1: to see things from her point of view. And the
Speaker 1: way the descent structured their opening was to really humanize her.
Speaker 1: And she has to be the person drive that home.
Speaker 1: That's the only way that gets in. She's charged with
Speaker 1: first degree man slaughter and second degree man slaughter. What
Speaker 1: would each of those require? So I'll start with second degree.
Speaker 1: Second degree man's thaughter requires essentially that she takes an
Speaker 1: unjustified risk that's dangerous under the circumstances I think that's
Speaker 1: pretty hard for them to prove, right. And then the
Speaker 1: other charge I think is even more hard for the
Speaker 1: state to prove because it it requires her to have
Speaker 1: had some intent to assault him, right, which then gets
Speaker 1: to this question of was it reasonable for her to
Speaker 1: even pull out her taser? Was it reasonable for her
Speaker 1: right to use the deadly force that she did under
Speaker 1: the circumstances. So the first degree man slaughter charge really
Speaker 1: puzzled me, and you know, they listened to the testimony
Speaker 1: critically to figure out if that's really the angle that
Speaker 1: you know that the state has that you know, she
Speaker 1: had some kind of an intent to assault him. Um.
Speaker 1: I think that's a pretty big stretch under the circumstances. Um.
Speaker 1: But you know, the second reeman thought her. The charge
Speaker 1: we typically see for officers in this situation is, you know,
Speaker 1: did she take the risk that was too great? Right?
Speaker 1: And that's why the defense continues to build up. You know,
Speaker 1: all all of these um factors right from officer inside
Speaker 1: the car, he's resisting arrest, he's about to take off,
Speaker 1: who is the front seat passenger, and we know that
Speaker 1: he had a warrant on a gun on a gun charge, right,
Speaker 1: what's going to happen next, and she had seconds to
Speaker 1: think about it. That that that's what I think, you know,
Speaker 1: makes this analysis so much easier than, for example, the
Speaker 1: analysis and the Chauvin trial, right, And by easier, I
Speaker 1: mean easier for a jury to look at it through
Speaker 1: the defendants eyes and and equit them because she had
Speaker 1: seconds to react. This all went really fast, harder furtheritors
Speaker 1: to get you know, into Chauvin's um perspective that he
Speaker 1: should just keep kneeling on somebody for nine minutes. Right,
Speaker 1: they're apples and oranges. And in this case, I think
Speaker 1: that the video is still compelling for her, all of it.
Speaker 1: So obviously she made a mistake. Does that lead to
Speaker 1: second degree manslaughter? Though not if you think her choice,
Speaker 1: you know, to you know, pull that phaser out was
Speaker 1: reasonable under the circumstances. It's not a question of, you know,
Speaker 1: wasn't reasonable for her to pull a gun if you
Speaker 1: believe she committed you know, that that move and error, right,
Speaker 1: she thought she had her taser, but she reached her gun.
Speaker 1: That's the mistake. But if you believe she had a
Speaker 1: basis to try to stop this person from taking off,
Speaker 1: that her actions are justified. And there's no crime here
Speaker 1: because this is you know, this is the third case
Speaker 1: that I can think of involving a black man being
Speaker 1: killed by a police officer in Minnesota in recent years.
Speaker 1: Do you think that there would be outcry if she
Speaker 1: is found not guilty. Probably. I mean what I'm noticing,
Speaker 1: even from you know, the attorney com and Terry, you know,
Speaker 1: different stations and outlets are are showcasing, is that the
Speaker 1: attorneys are really, you know, of different minds about this.
Speaker 1: And you know, I suspect that there is a certain
Speaker 1: you know population who you know, are going to say, wow,
Speaker 1: you know, this is really a miscarriage of justice if
Speaker 1: there's not a conviction. And I think that there is
Speaker 1: another camp that will say, well, you know, finally this
Speaker 1: lady got acquitted because this is really truly mistake in
Speaker 1: our case is so different from the other officers that
Speaker 1: were required to go on trial. I think it'll be
Speaker 1: very divisive. Thanks Krista. That's former public defender Krista Grosschek,
Speaker 1: managing partner of Groschek Law. And that's safe In this
Speaker 1: edition of the Bloomberg Law Show, I'm June Grosso and
Speaker 1: you're listening to Bloomberg