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

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Speaker 2: It was heart wrenching, you know, telling these stories over

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Speaker 2: and over again about the most traumatic thing that's ever

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Speaker 2: happened to us, sharing our grief and our loss in

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Speaker 2: brutal detail over and over.

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Speaker 3: How close to dead do I have to be before

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Speaker 3: I can fully access healthcare?

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Speaker 4: Amanda Zarowski and Lauren Miller are two of the twenty

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Speaker 4: women suing the state of Texas over its near total

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Speaker 4: ban on abortions, which they say force them to continue

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Speaker 4: their pregnancies despite serious risks to their health. The lawsuit

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Speaker 4: is among the biggest challenges to abortion bands in the

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Speaker 4: country since Roe v. Wade was overturned last year. The

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Speaker 4: women are not seeking to repeal the state's abortion ban,

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Speaker 4: but rather to get more clarity on when exceptions are

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Speaker 4: allowed under the law. At oral arguments before the Texas

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Speaker 4: Supreme Court on Tuesday, their attorney, Molly Dwayne, said, doctors

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Speaker 4: don't know when they can provide emergency care.

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Speaker 5: The abortion bans as they exist today subjects physicians like

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Speaker 5: my clients to the most extreme penalties, imaginable life in

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Speaker 5: prison and loss of their medical license. And while there

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Speaker 5: is technically a medical exception to the bands. No one

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Speaker 5: knows what it means and the state won't tell us,

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Speaker 5: but a.

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Speaker 4: Lawyer for the Texas Attorney General's Office, Beth Klusman, argued,

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Speaker 4: the law is clear about the exceptions.

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Speaker 3: The song Instar judgment is reasonable. You should be fine

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Speaker 3: under this law.

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Speaker 4: Joining me is Elizabeth Sepper, a professor at the University

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Speaker 4: of Texas Law School. Liz tell us about the abortion

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Speaker 4: law in Texas.

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Speaker 6: In Texas, we have a lot of abortion laws. We

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Speaker 6: have a trigger ban, we have SB eight that allows

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Speaker 6: for civil suits against people who help us abortions, and

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Speaker 6: we have a pre rogue criminal ban that is only

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Speaker 6: partially in effect. And these laws ban abortion entirely, with

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Speaker 6: the rare exception of emergency situations situations that the statue

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Speaker 6: refers to as life threatening.

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Speaker 4: Who are the plaintiffs in this law suit in what

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Speaker 4: are they suing about? Specifically?

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Speaker 6: The plaintiffs here are women who have experienced pregnancy loss

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Speaker 6: or other emergent and life and health threatening conditions in

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Speaker 6: their pregnancy. Some of the plaintiffs are currently pregnant and

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Speaker 6: efface a high risk of potential complications, and some of

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Speaker 6: the plaintiffs are physicians who are confronting patients every day

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Speaker 6: who they have to bring to the brink of death

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Speaker 6: before they can intervene under the Texas law. The plaintiffs

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Speaker 6: prevailed in the trial court at this very preliminary stage,

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Speaker 6: so what they got from the trial court was an

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Speaker 6: interpretation of the Texas statutes that allows doctors to in

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Speaker 6: good faith determine that there is an urgent need to

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Speaker 6: act in order to avoid death or serious bodily harm

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Speaker 6: to a woman.

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Speaker 4: So they're not specifically attacking the abortion bands as unconstitutional.

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Speaker 4: They're looking for guidance.

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Speaker 6: The plaintiffs are looking for guidance as to what the

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Speaker 6: statute means. The scope of what they're asking for is narrow.

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Speaker 6: They aren't thinking to have the bands struck down as unconstitutional,

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Speaker 6: but rather the clarification on how they work in emergency situations.

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Speaker 4: The penalties for doctors who violate the abortion bands are

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Speaker 4: so severe, from loss of their medical license to possibly

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Speaker 4: life in prison. Have any doctors actually been sentenced or

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Speaker 4: try under these laws yet?

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Speaker 6: No, No one has been charged with violating the Texas

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Speaker 6: abortion bands in large measure because we just aren't being

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Speaker 6: abortions performed even in emergency situation.

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Speaker 4: I have heard in other states as well that doctors

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Speaker 4: are hesitant to perform an abortion even when there might

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Speaker 4: be an emergency situation because of the penalties involved.

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Speaker 6: Yes, the doctors are concerned by the bands because they

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Speaker 6: risk losing their medical license, risk up to life in prison,

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Speaker 6: really draconian penalties on top of that, right, they're not

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Speaker 6: exactly sure how a prosecutor goes about proving that they've

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Speaker 6: violated the abortion ban in these emergency situations. If a

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Speaker 6: prosecutor can make out a case against them by simply

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Speaker 6: bringing forward an expert who disagrees with how much the

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Speaker 6: person's health or life was at risk, then they think

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Speaker 6: there's just too much uncertainty that any given emergency abortion

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Speaker 6: or life saving abortion that they in good faith believe

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Speaker 6: they need to do to save the patient's life could

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Speaker 6: result in charges.

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Speaker 4: And so tell us what the argument of the plaintiffs is.

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Speaker 6: The plaintiffs argue that the abortion bands lack clarity. There

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Speaker 6: is inconsistent language across a number of the laws, and

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Speaker 6: they say that they need guidance on how the law

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Speaker 6: is meant to apply in emergent situations and what they

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Speaker 6: prefer as The best interpretation of the law is that

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Speaker 6: doctors can intervene when they, in good faith see a

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Speaker 6: patient in a situation where her life and serious health

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Speaker 6: risks are at stake, and that they need not wait

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Speaker 6: until death is imminent in order to act on that

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Speaker 6: good faith determination.

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Speaker 4: Did some of the plaintiffs actually come up against a

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Speaker 4: situation where their life was at risk and a doctor

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Speaker 4: didn't act.

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Speaker 6: Yes, many of the patients suffered really severe repercussions, including

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Speaker 6: the named plaintiff, Amanda Zarowski, who became septic and spent

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Speaker 6: days in the ICU as a result of being denied

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Speaker 6: a medically necessary abortion for pre viable pregnancy. And as

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Speaker 6: a result of that icy stay, she actually lost one

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Speaker 6: of her fallopian tubes and so has much lower future fertility.

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Speaker 4: So now let's go through some of the state's arguments,

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Speaker 4: and one is that the state claims the women filing

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Speaker 4: the suit don't have standing to file the suit. In

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Speaker 4: other words, they don't have a stake in the outcome.

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Speaker 4: Explain that argument.

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Speaker 6: So the argument around standing shifts as circumstances changed. So

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Speaker 6: the state of Texas says you can't bring a lawsuit

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Speaker 6: unless you are pregnant and So the Center for Reproductive

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Speaker 6: Rights has plaintiffs who are pregnant, and part of this

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Speaker 6: is the notion that, well, if you're not pregnant, you

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Speaker 6: can't possibly know that you'll be affected by the operation

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Speaker 6: of this abortion ban. But even with pregnant patients, they

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Speaker 6: then say, well, you can't possibly know that this pregnancy

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Speaker 6: is going to threaten your life to a degree to

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Speaker 6: which you might become eligible for these medical exceptions. They're

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Speaker 6: also plaintiffs tho, who are doctors, so they are on

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Speaker 6: a regular basis confronting patient to whom they have to

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Speaker 6: deny care because they cannot act until their lives are

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Speaker 6: in danger. So the standing argument just isn't strong. As

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Speaker 6: part of this, Texas repeats over and over again. But

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Speaker 6: it's not Texas's fault that people are denied abortions in

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Speaker 6: emergent situations, but rather that it's the fault of doctors themselves,

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Speaker 6: the individual doctors who are unwilling to act because of

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Speaker 6: the statute.

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Speaker 4: And just as Jeff Boyd seemed a little incredulous about

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Speaker 4: the state's standing argument.

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Speaker 7: Your position is that in order to challenge, to seek

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Speaker 7: the kind of clarity that these plaintiffs are seeking, you

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Speaker 7: have to have a woman who has some who is pregnant,

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Speaker 7: who has some health condition that she believes places her

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Speaker 7: life at risk or impairment to a major bodily function,

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Speaker 7: but her doctor says, I don't think it does, and

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Speaker 7: she has to then sue the doctor and maybe the

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Speaker 7: Attorney general at that point, and then she would have standing.

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Speaker 3: I don't know if that would be the only circumstance,

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Speaker 3: but you would at least then know that the law

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Speaker 3: is the problem and not the doctor refusing to perform

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Speaker 3: an abortion.

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Speaker 4: And the Assistant Attorney General at one point made this

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Speaker 4: very stark statement. She said, a woman is bleeding or

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Speaker 4: has amniotic fluid running down her legs, then the problem

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Speaker 4: is not with the law, that is with the doctors.

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Speaker 4: The state wants women to sue the doctors.

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Speaker 6: Yes, so this was an option that came up over

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Speaker 6: and over again in the oral argument before the Texas

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Speaker 6: Supreme Court. Is that when a person is in an

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Speaker 6: extreme situation where they might be eligible under the exceptions

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Speaker 6: to Texas abortion bands, what they should really do is

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Speaker 6: see physicians who are unwilling to act to treat them.

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Speaker 6: As the plaintiffs lawyer pointed out, this is a highly

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Speaker 6: unrealistic view and impractical for patients in these scenarios to

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Speaker 6: go out and shop for an attorney who can file

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Speaker 6: an emergency motion in state court. And on top of that,

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Speaker 6: some of these plaintiffs are not pregnant people or people

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Speaker 6: who are concerned about future pregnancies. Rather, they are physicians,

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Speaker 6: and so the physicians standing would seem to be independent

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Speaker 6: of the idea that plaintiffs should more properly be pointing

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Speaker 6: the finger at doctors whose hands are tied by the law.

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Speaker 4: And the state is also arguing that the law is clear.

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Speaker 6: Yes, the state is arguing that the law is clear,

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Speaker 6: though the state has been unwilling to explain the boundaries

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Speaker 6: of the law right. Part of what's prompting this lawsuit

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Speaker 6: is that, unlike in other states where the state Medical

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Speaker 6: Board has offered specific guidance to physicians, the Texas Medical

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Speaker 6: Board has been totally silent here, and nor has the

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Speaker 6: Attorney General issued specific guidance. And one would think that

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Speaker 6: if the law were actually clear, right, it allows a

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Speaker 6: physician to intervene or we're dealing with premature rupture of

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Speaker 6: the membranes, for instance, or molar pregnancy or other scenarios

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Speaker 6: that can commonly occur in pregnancy and threaten lives, that

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Speaker 6: they would say so, and they have just remained silent

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Speaker 6: both the Board and the Attorney General.

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Speaker 4: Is the state's position that women have to carry a

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Speaker 4: feet as to turn even if the fetus is not

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Speaker 4: viable or if the pregnancy presents a risk to the mother.

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Speaker 6: The state's position is that the exception is extremely narrow,

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Speaker 6: so it applies to threats to life, but presumably would

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Speaker 6: not apply to fetal anomaly.

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Speaker 4: Yes, that's right, and I believe one of the women

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Speaker 4: had to carry a fetus to term even though she

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Speaker 4: knew that it would not survive.

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Speaker 6: Yes, So part of the argument here is on that

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Speaker 6: particular score is that the state isn't achieving any state

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Speaker 6: interest when it makes women carry the term pregnancy is

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Speaker 6: that are destined to result in stillbirth or a very momentary,

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Speaker 6: hours long life for the baby.

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Speaker 4: Coming up next, where the Texas Justice is leaning in

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Speaker 4: any direction? I'm June Grosso. When you're listening to Bloomberg,

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Speaker 4: I've been talking to Professor Elizabeth Zepper of the University

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Speaker 4: of Texas School about oral arguments before the Texas Supreme

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Speaker 4: Court on that state's abortion ban. The Texas Supreme Court

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Speaker 4: consists of nine Republican appointed judges. Did you see five

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Speaker 4: of them leaning in one direction or another or did

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Speaker 4: they seem split? What was your take on the arguments?

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Speaker 6: The justices seemed all over the map, honestly, And I

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Speaker 6: don't mean that as a prediction that the plaintiffs are

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Speaker 6: going to win here on the merits or across the board,

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Speaker 6: but rather that there seemed to be some justices who

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Speaker 6: wanted to find a way to deny standing to the plaintiffs,

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Speaker 6: perhaps through this argument that plaintiffs should just see doctors

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Speaker 6: and Texas is not really at fault, as the state claims,

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Speaker 6: But others expressed real confusion over the standing arguments and

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Speaker 6: how it would be possible to deny standing to the plaintiffs.

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Speaker 6: And I think they expressed some frost with the state

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Speaker 6: right because here, the reason we're at the Texas Supreme Court,

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Speaker 6: the reason we're in the court system, is because the

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Speaker 6: Texas Medical Board has provided no guidance, because the legislature

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Speaker 6: flowfully drafted an abortion van that can't be understood by

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Speaker 6: the healthcare providers subject to its terms. And so I

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Speaker 6: think there was a lot of frustration on that score

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Speaker 6: as to what they were supposed to do.

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Speaker 7: Right.

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Speaker 6: Once they find standing, then they are left with the

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Speaker 6: question of how to interpret the statutory language. And depending

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Speaker 6: on how they interpret it, they then have to come

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Speaker 6: to the plaintiff's constitutional arguments that if the statute doesn't

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Speaker 6: allow physicians to act to save health and life in

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Speaker 6: emergent situations, then it violates the Texas Constitution. We didn't

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Speaker 6: see a whole lot of uptake of the constitutional argument,

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Speaker 6: but there were some questions about in what way the

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Speaker 6: Constitution would possibly reach the Texas abortion van medical dat So.

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Speaker 4: If the Texas Supreme Court sides with the state, is

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Speaker 4: the case over.

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Speaker 6: Possibly right or very early on in the litigation if

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Speaker 6: they're at the court on a preliminary in junction. So

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Speaker 6: really the court is just determining whether the preliminary injunction

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Speaker 6: ruling should stand. But what they say could essentially end

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Speaker 6: the case. And certainly, if the Texas Supreme Court determines

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Speaker 6: that these plaintiffs don't have standing, then yes, the case

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Speaker 6: is dead on arrival.

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Speaker 4: And if the Texas Supreme Court denies the state's request

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Speaker 4: to dismiss the case, then it goes back to the

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Speaker 4: district court for a full trial.

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Speaker 6: Yes, we're very early on. So it goes back within

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Speaker 6: the Texas state system to the Texas Trial judge for

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Speaker 6: a trial on the merit.

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Speaker 4: Just this month, thirteen groups filed the Meeks briefs. What

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Speaker 4: do you think are the implications for this decision in

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Speaker 4: and out of Texas?

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Speaker 6: The implications are going to be felt first and foremost

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Speaker 6: in Texas. The arguments that the plaintiffs are making as

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Speaker 6: a matter of constitutional law are about the Texas Constitution,

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Speaker 6: but it is part and parcel of a phenomenon we've

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Speaker 6: seen in state courts so Oklahoma, North Dakota, Indiana have

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Speaker 6: determined that their abortion bans has to have a life

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Speaker 6: or a health exception because otherwise they violate protections on

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Speaker 6: life within the state constitution. So the Texas Supreme Court

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Speaker 6: could here agree and further this trend toward recognizing some

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Speaker 6: limitations on how far abortion bans can go.

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Speaker 4: And has the state Supreme Court made any rulings recently

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Speaker 4: on abortion issues?

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Speaker 6: So the Texas Supreme Court has recently been involved in

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Speaker 6: the back and forth over SB eight, for example, But

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Speaker 6: what they've done there is usually take on relatively narrow

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Speaker 6: questions with regard to SBA, the question was simply around

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Speaker 6: whether the licensing board could be sued, and the Texas

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Speaker 6: Supreme courts that know and therefore killed the SBA. What

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Speaker 6: was left of the SB eight lawsuit after it left

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Speaker 6: the United States Supreme Court. So not a lot of

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Speaker 6: activity on the merits of protections for abortion in the

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Speaker 6: state of Texas.

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Speaker 4: Why are there so many abortion laws? Why isn't there

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Speaker 4: one comprehensive law.

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Speaker 6: Part of it is that we had a series of

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Speaker 6: laws that predate DOBS, which overturned or a viewwade. So

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Speaker 6: we have laws that regulate abortions for minors, we have

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Speaker 6: laws around informed consent, we have a number of abortion

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Speaker 6: restrictions that pre date our total bands, and then we

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Speaker 6: have our pre road Statute, for instance, which long predates

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Speaker 6: DOBS in the contemporary moment. So there's just differences in

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Speaker 6: language that show up when you look across all of

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Speaker 6: the abortion laws.

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Speaker 4: We've seen backlash against abortion bands in other red states.

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Speaker 4: Is there anything like that brewing in Texas?

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Speaker 6: We've seen very minor developments. The Texas state legislature this

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Speaker 6: year enacted in extremely narrow affirmative defense to the abortion bans,

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Speaker 6: recognizing that premature rupture of the membranes, for instance, and

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Speaker 6: ectopic pregnancies of all kinds should not be within the

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Speaker 6: abortion ban. But it's an affirmative defense, so in fact

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Speaker 6: it applies pretty narrowly. Doctors would have to be willing

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Speaker 6: to face criminal charges or face revocation of their medical

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Speaker 6: license and then raise a defense that this person was

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Speaker 6: experiencing a defection ectopic pregnancy, for example. So pretty near

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Speaker 6: in terms of the changes we're seeing. We do not

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Speaker 6: have a process by which the people can put on

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Speaker 6: the ballot a constitutional amendment that might protect reproductive rights

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Speaker 6: or do away with some of the manifestations of our

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Speaker 6: abortion bands.

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Speaker 4: And finally, the state really harped on the standing argument.

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Speaker 4: Do you think the court will at least find that

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Speaker 4: the plaintiffs here have standing.

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Speaker 6: Whether it's the doctors have standing, even if the women don't.

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Speaker 6: It's almost impossible to imagine a scenario where you can't

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Speaker 6: count the vote to say at least one plaintiff, which

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Speaker 6: is all they need, has standing, because standing is a

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Speaker 6: principle that's going to apply across different areas of law,

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Speaker 6: and I don't think the Texas Supreme Court is going

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Speaker 6: to be eager to totally shut the courtroom doors to

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Speaker 6: plaintiffs in a lot of different types of lawsuits, not

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Speaker 6: just abortion related lawsuits.

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Speaker 4: It'll be a while before we hear from the Texas

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Speaker 4: Supreme Court. They're expected to rule by June. Thanks so much, Liz.

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Speaker 4: That's Professor Elizabeth Zepper of the University of Texas Law

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Speaker 4: School coming up next. Double Jeopardy at the Supreme Court.

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Speaker 4: I'm June Grosso and you're listening to Bloomberg. A majority

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Speaker 4: of Supreme Court justices seemed to agree that a Georgia

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Speaker 4: man cannot be prosecuted twice for murdering his adoptive mother

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Speaker 4: after a jury issued verdicts that found him both sane

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Speaker 4: and insane. The jury found Damien mc calrath not guilty

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Speaker 4: of malice murder by reason of insanity for stabbing Diane

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Speaker 4: McIlrath over fifty times in twenty twelve, but he was

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Speaker 4: found guilty, though mentally ill, of felony murder and aggravated assault.

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Speaker 4: The Georgia Supreme Court ruled that wasn't legally possible throughout

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Speaker 4: the verdicts and ordered a new trial, but McIlrath argues

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Speaker 4: that under the Fifth Amendment's double jeopardy clause. He can't

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Speaker 4: be prosecuted again for the charge he was acquitted of.

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Speaker 4: Justice Neil Gorsuch joined some of the members of the

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Speaker 4: court's liberal wing in expressing the importance of respecting a

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Speaker 4: jury's verdict of acquittal.

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Speaker 8: The two hundred and thirty years in this country's history

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Speaker 8: we have respected acquittals without looking into their substance and

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Speaker 8: without looking at how they fit with other counts, and said,

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Speaker 8: a jury is a check on judges, it's a check

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Speaker 8: on prosecutors, it's a check on overreach. It's part of

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Speaker 8: our democratic system.

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Speaker 4: And we do not ever.

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Speaker 8: Talk about whether they make sense to us. They may

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Speaker 8: be products of compromise, they may be inconsistent with verdicts

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Speaker 8: on other counts. We don't question them. And that this

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Speaker 8: is a first time this issue has arisen here. Shouldn't

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Speaker 8: that tell us something?

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Speaker 4: Joining me is former federal prosecutor George Newhouse of Richard's

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Speaker 4: Carrington double jeopardy. I think everyone has some idea, perhaps incorrect,

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Speaker 4: of what double jeopardy means from the movies and TV.

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Speaker 4: Tell us what it means.

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Speaker 1: The double jeopardy clause of the Constitution and particularly the

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Speaker 1: Fifth Amendment is very clear. It basically says that the

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Speaker 1: government gets one shot, one chance to convict the defendant

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Speaker 1: of a crime, and if the jury finds a defendant

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Speaker 1: not guilty, then the government is unable to ask the

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Speaker 1: judge for a retrial. It gets one chance. There are

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Speaker 1: various exceptions to it. A big one, for example, is

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Speaker 1: the state is unsuccessful the federal government. A different sovereign

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Speaker 1: can basically bring the defendant back up on the same charge,

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Speaker 1: only this time of federal charge, and double jeopardy doesn't apply.

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Speaker 1: But if it's the same sovereign here it's the state

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Speaker 1: of Georgia, they get one chance. And the jury in

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Speaker 1: this case apparently returned what appeared to be an inconsistent

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Speaker 1: verdict between three counts. The state is arguing that that

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Speaker 1: should be an exception to the double jeopardy rule, and

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Speaker 1: that is an interesting legal question.

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Speaker 4: Yeah, so tell us a little bit more about the

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Speaker 4: different verdicts here.

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Speaker 1: Happy to So, the basic facts are this is twenty twelve.

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Speaker 1: A delusional defendant, Damian Mcroff, believed that his mother was

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Speaker 1: trying to poison him and as a result, stabbed her

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Speaker 1: to debt. He of course, then washed up called nine

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Speaker 1: to eleven, told the dispatcher what he'd done and why

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Speaker 1: he was right to have done it. So clearly he

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Speaker 1: went to trial on three counts, by the way, and

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Speaker 1: that's where this comes up to the three separate charges.

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Speaker 1: The first one in under Georgia law is called malice

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Speaker 1: of murder, which is equivalent to a first degree murdered

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Speaker 1: I've always the most serious charge, the one that typically

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Speaker 1: can carry him capital punishment. And then there were two

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Speaker 1: other counts, a felony murder rule, which means that he

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Speaker 1: killed someone in connection with committing a felony, in this case,

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Speaker 1: an aggravated assault. And so the third charge was aggravated assault.

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Speaker 1: And you might ask why to prosecutors bring three separate

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Speaker 1: charges when there's really one one act occur to killing,

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Speaker 1: And they do that because sometimes they want to present

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Speaker 1: the jury with the option of convicting on a lesser

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Speaker 1: offense if they think they might have a problem with

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Speaker 1: the principal offense. And that's exactly what happened here. The

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Speaker 1: jury deliberated, and of course the defense was he was insane,

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Speaker 1: so he lacked the criminal intent to commit murder, and

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Speaker 1: the jury deliberated and found him not guilty by reason

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Speaker 1: of insanity on the first count, saying he was crazy,

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Speaker 1: but on counts two and three, the felony murder and

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Speaker 1: the aggregated assault, the jury found that he was sane

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Speaker 1: and convicted him. The State of Georgia, unhappy with that,

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Speaker 1: went to the court and said, well, we need a

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Speaker 1: new trial, and the court said why, and the state said,

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Speaker 1: because these verdicts are logically inconsistent. You can't be crazy

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Speaker 1: on one count, the worst count, but saints on the

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Speaker 1: other counts, And that went all the way to the

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Speaker 1: Georgia Supreme Court, which agreed. The Georgia Supreme Court said

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Speaker 1: the verdicts on these two different counts are logically repugnant,

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Speaker 1: and as a result it vacated the not guilty verdict

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Speaker 1: and told the state that they are free to retry him.

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Speaker 1: And that's what went up to the Supreme Court whether

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Speaker 1: there should be an exception to the double jeopardy clause,

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Speaker 1: and the exception would allow if the verdicts were logically inconsistent,

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Speaker 1: which jury verdicts are, by the way, frequently, they'd be

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Speaker 1: allowed to retry him.

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Speaker 4: George Prosecutors are normally not allowed to appeal acquittals are they,

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Speaker 4: I mean, how do they even get to the Georgia

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Speaker 4: Supreme Court.

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Speaker 1: Well, that's a great, great question. So clearly what happened

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Speaker 1: is the prosecutors went to the trial judge and asked

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Speaker 1: the trial judge to vacate the not guilty verdict. So

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Speaker 1: in effect, they asked the judge to ignore the not

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Speaker 1: guilty verdict and set the matter over for trial. And

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Speaker 1: that's where the double jeopardy issue arose, because, as I said,

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Speaker 1: the rule in this country for the last two hundred

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Speaker 1: and thirty years of justice courses pointed out is you

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Speaker 1: only get one chance, and if that jury verdict comes

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Speaker 1: back not guilty, there is can be no retrial.

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Speaker 4: You mentioned Justice Gorsuch and he was pretty fervent about

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Speaker 4: the respect for acquittals. It's a check on judgers, it's

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Speaker 4: a check on prosecutors, it's a check on overreach.

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Speaker 3: Is he right?

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Speaker 1: Justice Gorsage is absolutely correct, We don't. The court system

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Speaker 1: does not second guess acquittals, though, for example, if the

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Speaker 1: acquittal is based upon what's called jury nullification, they simply

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Speaker 1: ignore the evidence. You know, where that the verdicts is

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Speaker 1: illogically inconsistent between two different counts. The court system is

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Speaker 1: not allowed to second guess that though, for example in

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Speaker 1: this case, what usually happens here probably happened in this

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Speaker 1: case was the inconsistent verdicts were product of compromise. Justice

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Speaker 1: Gorsage address that they may be products of compromise, they

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Speaker 1: may be inconsistent with other verdicts. We Justice Courses said,

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Speaker 1: the court system does not question those verdicts, and that

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Speaker 1: has been the law in this country for two hundred

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Speaker 1: and thirty years. As far as I know, Inconsistent vertis

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Speaker 1: happen all the time. I tried one as a prosecutor,

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Speaker 1: and the judge said, well, we have two verdicts, one

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Speaker 1: is inconsistent with the other, and the case is finished,

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Speaker 1: so double jeopardy apply.

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Speaker 4: The George Solicitor General argued that there really had not

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Speaker 4: been an acquittal because under Georgia law, a jury cannot

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Speaker 4: issue special affirmative findings that facially contradict each other.

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Speaker 1: Well, I don't know about that, but the fact of

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Speaker 1: the matter is whatever they issued, they returned a not

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Speaker 1: guilty verdict on the principal count, the first degree murder

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Speaker 1: malice of murder, and that resolved that case. So that's

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Speaker 1: their argument. But I don't think it's going to gain

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Speaker 1: much traction in the Supreme Court.

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Speaker 4: Yeah, Justice Katanji Brown Jackson said, even if we know

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Speaker 4: that they are inconsistent. So what I mean the point

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Speaker 4: is we've said a jury can issue in consistent.

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Speaker 1: Verdicts that is established law. Juries can compromise, juris can

444
00:26:57,840 --> 00:27:01,320
Speaker 1: acquit sometimes based upon all of the These are powers

445
00:27:01,400 --> 00:27:04,680
Speaker 1: that you won't find in any law book. So the

446
00:27:04,800 --> 00:27:07,119
Speaker 1: jurors are not told they have these powers, but as

447
00:27:07,160 --> 00:27:10,440
Speaker 1: a matter of fact, they can return any verdict that

448
00:27:10,600 --> 00:27:14,120
Speaker 1: they deem is appropriate and compromise verdicts, which this point

449
00:27:14,160 --> 00:27:19,680
Speaker 1: one probably was typically involves a logical inconsistency. So this

450
00:27:19,880 --> 00:27:22,600
Speaker 1: is something that happens a lot. This is and prosecutors notice,

451
00:27:22,720 --> 00:27:25,399
Speaker 1: in fact, one might argue that's why they charge the

452
00:27:25,480 --> 00:27:29,560
Speaker 1: two other counts. They'm act but lesser degree of punishment.

453
00:27:29,760 --> 00:27:31,000
Speaker 1: It gives the jury a choice.

454
00:27:31,840 --> 00:27:34,560
Speaker 4: Now, one of the justices, who was not ever a prosecutor,

455
00:27:34,800 --> 00:27:38,879
Speaker 4: Samuel Alito, said it's his understanding that in some states,

456
00:27:39,080 --> 00:27:41,639
Speaker 4: trial judges can tell a jury that its verdicts are

457
00:27:41,760 --> 00:27:45,520
Speaker 4: irreconcilable and instruct them to go back and deliberate.

458
00:27:46,240 --> 00:27:49,600
Speaker 1: Have you ever seen that I've never seen that, and

459
00:27:49,680 --> 00:27:52,800
Speaker 1: I don't believe that that's an accurate statement. I think,

460
00:27:52,840 --> 00:27:57,600
Speaker 1: as I understand the Missouri procedure, before the verdict is returned,

461
00:27:57,760 --> 00:28:01,840
Speaker 1: the jury would send in a note would indicate the inconsistency,

462
00:28:02,280 --> 00:28:04,959
Speaker 1: and in that case the law allows the judge before

463
00:28:05,040 --> 00:28:07,520
Speaker 1: the verdict is returned. Now verdicts is return with it,

464
00:28:08,200 --> 00:28:10,840
Speaker 1: they pick not guilty and signed by the four person

465
00:28:10,960 --> 00:28:14,280
Speaker 1: and delivers in court. Before that happens, the court can,

466
00:28:14,359 --> 00:28:16,880
Speaker 1: of course always send the jurors back with an instruction

467
00:28:17,320 --> 00:28:21,000
Speaker 1: that they should continue to deliberate. But once that jury

468
00:28:21,200 --> 00:28:24,879
Speaker 1: verdict is signed and delivered in court, there's no sending

469
00:28:24,920 --> 00:28:27,840
Speaker 1: it back. At that point, I believe that Supreme Court

470
00:28:27,880 --> 00:28:28,760
Speaker 1: will say it.

471
00:28:28,920 --> 00:28:32,480
Speaker 4: Is over and for good, and by the end of

472
00:28:32,520 --> 00:28:34,760
Speaker 4: the arguments, I guess the writing was on the wall,

473
00:28:34,840 --> 00:28:39,720
Speaker 4: and Justice Kavanaugh asked the Solicitor General what would happen

474
00:28:40,120 --> 00:28:44,720
Speaker 4: if Georgia lost. Could Michel Raft's two guilty verdicts, which

475
00:28:44,800 --> 00:28:48,320
Speaker 4: had been declared no by the Georgia Supreme Court, be reinstated.

476
00:28:49,400 --> 00:28:51,640
Speaker 1: I believe they could be reinstated. That would be the

477
00:28:51,720 --> 00:28:56,160
Speaker 1: result of that of that judgment, So the convictions would

478
00:28:56,280 --> 00:28:59,760
Speaker 1: stand and those of course could be independently appealed, but

479
00:28:59,840 --> 00:29:02,640
Speaker 1: they could be resurrected. And if they couldn't be resurrected,

480
00:29:03,080 --> 00:29:05,200
Speaker 1: as to those counts, there probably could be a retrial,

481
00:29:05,880 --> 00:29:08,400
Speaker 1: but they cannot have a retrial on account where the

482
00:29:08,480 --> 00:29:12,280
Speaker 1: jury returned a not guilty verdict, whatever their reasoning was.

483
00:29:13,080 --> 00:29:15,000
Speaker 4: So you think they could have a retrial on the

484
00:29:15,160 --> 00:29:15,880
Speaker 4: other counts.

485
00:29:16,520 --> 00:29:18,600
Speaker 1: No, I think in all likely that the court would say,

486
00:29:18,840 --> 00:29:22,200
Speaker 1: based upon the decision of the Supreme Court, those two

487
00:29:22,280 --> 00:29:26,040
Speaker 1: convictions stand and are resurrected. There's no need for retrial.

488
00:29:26,120 --> 00:29:27,080
Speaker 1: You already have a conviction.

489
00:29:27,920 --> 00:29:30,000
Speaker 4: Do you think that'll be a narrow decision, you know,

490
00:29:30,200 --> 00:29:33,600
Speaker 4: just this case, or they might issue some broad statements

491
00:29:33,640 --> 00:29:34,480
Speaker 4: about acquittals.

492
00:29:35,080 --> 00:29:38,160
Speaker 1: Well, the Supreme Court generally only decides the question that's

493
00:29:38,200 --> 00:29:41,440
Speaker 1: presented to it, so they take the narrow approach. And

494
00:29:41,600 --> 00:29:46,640
Speaker 1: here I see a short, probably unanimous opinion affirming that

495
00:29:47,440 --> 00:29:50,560
Speaker 1: double jeopardy rule means exactly what it says. You get

496
00:29:50,640 --> 00:29:54,560
Speaker 1: one chance, and there's established precedent for this, and the

497
00:29:54,720 --> 00:29:58,920
Speaker 1: argument that an inconsistent verdict between two different counts in

498
00:29:59,040 --> 00:30:02,200
Speaker 1: some way in validates the acquittal. The court will say

499
00:30:02,480 --> 00:30:05,280
Speaker 1: there's no law for that, and the constitution doesn't permit it.

500
00:30:06,000 --> 00:30:09,840
Speaker 4: As Gorst said, an acquittal is an acquittal is an acquittal,

501
00:30:10,280 --> 00:30:12,520
Speaker 4: and just as Kagan pointed out, that either the jury

502
00:30:12,600 --> 00:30:16,720
Speaker 4: made a big mistake or they decided to compromise and

503
00:30:16,920 --> 00:30:17,920
Speaker 4: show leniency.

504
00:30:18,840 --> 00:30:22,840
Speaker 1: This happens all the time. Jurors compromise. They can't agree

505
00:30:23,280 --> 00:30:25,800
Speaker 1: on the result for the most serious count. They know

506
00:30:25,880 --> 00:30:27,880
Speaker 1: which one is the most serious account, and there wasn't

507
00:30:27,880 --> 00:30:30,680
Speaker 1: an agreement on whether or not he was clearly insane,

508
00:30:31,240 --> 00:30:33,440
Speaker 1: but they could agree that he should be punished, so

509
00:30:33,520 --> 00:30:37,760
Speaker 1: they agree to convict on the lesser included offense. It happens,

510
00:30:37,800 --> 00:30:40,240
Speaker 1: and this is, by the way, why prosecutors sometimes will

511
00:30:40,320 --> 00:30:42,760
Speaker 1: not give the jury the choice. They give the jury

512
00:30:42,920 --> 00:30:46,080
Speaker 1: only the most serious count, and therefore the jury doesn't

513
00:30:46,080 --> 00:30:48,800
Speaker 1: have the ability to compromise. You give them the choice

514
00:30:48,840 --> 00:30:53,959
Speaker 1: between two, you're implicitly inviting compromise. So basically, the Georgia

515
00:30:54,000 --> 00:30:55,160
Speaker 1: prosecutors set this up.

516
00:30:56,280 --> 00:30:58,880
Speaker 4: But if you don't give them the choice, you might

517
00:30:58,960 --> 00:31:00,120
Speaker 4: not get a guilty Verdi.

518
00:31:00,920 --> 00:31:06,000
Speaker 1: That's right, No, that's right, shooting class. If you're running

519
00:31:06,040 --> 00:31:08,600
Speaker 1: the risk when you don't give them any other choice,

520
00:31:08,640 --> 00:31:10,920
Speaker 1: you don't give them the less or included, you run

521
00:31:11,000 --> 00:31:13,240
Speaker 1: the risk that the defendant will walk, particularly in a

522
00:31:13,320 --> 00:31:15,080
Speaker 1: case like this, because this is a strong case that

523
00:31:15,200 --> 00:31:18,680
Speaker 1: you correctly put it out. He's clearly insane. He believed

524
00:31:18,680 --> 00:31:22,000
Speaker 1: his mother was trying to poison him. I'm assuming that

525
00:31:22,080 --> 00:31:24,080
Speaker 1: he's not, although we've read in the paper today about

526
00:31:24,120 --> 00:31:28,120
Speaker 1: the wife of the intelligence service chief in the Ukraine

527
00:31:28,160 --> 00:31:31,920
Speaker 1: who has been apparently poisoned by the Russians. So poisonings

528
00:31:31,960 --> 00:31:32,360
Speaker 1: do occur.

529
00:31:32,720 --> 00:31:34,840
Speaker 4: It's always a pleasure to have you on, George, Thanks

530
00:31:34,880 --> 00:31:39,560
Speaker 4: so much. That's former federal prosecutor George Newhouse of Richard's Carrington.

531
00:31:40,000 --> 00:31:42,280
Speaker 4: And that's it for this edition of The Bloomberg Law Show.

532
00:31:42,680 --> 00:31:44,960
Speaker 4: Remember you can always get the latest legal news on

533
00:31:45,080 --> 00:31:49,320
Speaker 4: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,

534
00:31:49,520 --> 00:31:54,520
Speaker 4: and at www dot Bloomberg dot com, slash podcast Slash Law,

535
00:31:54,960 --> 00:31:57,520
Speaker 4: and remember to tune into The Bloomberg Law Show every

536
00:31:57,600 --> 00:32:01,480
Speaker 4: weeknight at ten pm Wall Street Time. I'm June Grosso

537
00:32:01,640 --> 00:32:03,200
Speaker 4: and you're listening to Bloomberg