Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 2: It was heart wrenching, you know, telling these stories over
Speaker 2: and over again about the most traumatic thing that's ever
Speaker 2: happened to us, sharing our grief and our loss in
Speaker 2: brutal detail over and over.
Speaker 3: How close to dead do I have to be before
Speaker 3: I can fully access healthcare?
Speaker 4: Amanda Zarowski and Lauren Miller are two of the twenty
Speaker 4: women suing the state of Texas over its near total
Speaker 4: ban on abortions, which they say force them to continue
Speaker 4: their pregnancies despite serious risks to their health. The lawsuit
Speaker 4: is among the biggest challenges to abortion bands in the
Speaker 4: country since Roe v. Wade was overturned last year. The
Speaker 4: women are not seeking to repeal the state's abortion ban,
Speaker 4: but rather to get more clarity on when exceptions are
Speaker 4: allowed under the law. At oral arguments before the Texas
Speaker 4: Supreme Court on Tuesday, their attorney, Molly Dwayne, said, doctors
Speaker 4: don't know when they can provide emergency care.
Speaker 5: The abortion bans as they exist today subjects physicians like
Speaker 5: my clients to the most extreme penalties, imaginable life in
Speaker 5: prison and loss of their medical license. And while there
Speaker 5: is technically a medical exception to the bands. No one
Speaker 5: knows what it means and the state won't tell us,
Speaker 5: but a.
Speaker 4: Lawyer for the Texas Attorney General's Office, Beth Klusman, argued,
Speaker 4: the law is clear about the exceptions.
Speaker 3: The song Instar judgment is reasonable. You should be fine
Speaker 3: under this law.
Speaker 4: Joining me is Elizabeth Sepper, a professor at the University
Speaker 4: of Texas Law School. Liz tell us about the abortion
Speaker 4: law in Texas.
Speaker 6: In Texas, we have a lot of abortion laws. We
Speaker 6: have a trigger ban, we have SB eight that allows
Speaker 6: for civil suits against people who help us abortions, and
Speaker 6: we have a pre rogue criminal ban that is only
Speaker 6: partially in effect. And these laws ban abortion entirely, with
Speaker 6: the rare exception of emergency situations situations that the statue
Speaker 6: refers to as life threatening.
Speaker 4: Who are the plaintiffs in this law suit in what
Speaker 4: are they suing about? Specifically?
Speaker 6: The plaintiffs here are women who have experienced pregnancy loss
Speaker 6: or other emergent and life and health threatening conditions in
Speaker 6: their pregnancy. Some of the plaintiffs are currently pregnant and
Speaker 6: efface a high risk of potential complications, and some of
Speaker 6: the plaintiffs are physicians who are confronting patients every day
Speaker 6: who they have to bring to the brink of death
Speaker 6: before they can intervene under the Texas law. The plaintiffs
Speaker 6: prevailed in the trial court at this very preliminary stage,
Speaker 6: so what they got from the trial court was an
Speaker 6: interpretation of the Texas statutes that allows doctors to in
Speaker 6: good faith determine that there is an urgent need to
Speaker 6: act in order to avoid death or serious bodily harm
Speaker 6: to a woman.
Speaker 4: So they're not specifically attacking the abortion bands as unconstitutional.
Speaker 4: They're looking for guidance.
Speaker 6: The plaintiffs are looking for guidance as to what the
Speaker 6: statute means. The scope of what they're asking for is narrow.
Speaker 6: They aren't thinking to have the bands struck down as unconstitutional,
Speaker 6: but rather the clarification on how they work in emergency situations.
Speaker 4: The penalties for doctors who violate the abortion bands are
Speaker 4: so severe, from loss of their medical license to possibly
Speaker 4: life in prison. Have any doctors actually been sentenced or
Speaker 4: try under these laws yet?
Speaker 6: No, No one has been charged with violating the Texas
Speaker 6: abortion bands in large measure because we just aren't being
Speaker 6: abortions performed even in emergency situation.
Speaker 4: I have heard in other states as well that doctors
Speaker 4: are hesitant to perform an abortion even when there might
Speaker 4: be an emergency situation because of the penalties involved.
Speaker 6: Yes, the doctors are concerned by the bands because they
Speaker 6: risk losing their medical license, risk up to life in prison,
Speaker 6: really draconian penalties on top of that, right, they're not
Speaker 6: exactly sure how a prosecutor goes about proving that they've
Speaker 6: violated the abortion ban in these emergency situations. If a
Speaker 6: prosecutor can make out a case against them by simply
Speaker 6: bringing forward an expert who disagrees with how much the
Speaker 6: person's health or life was at risk, then they think
Speaker 6: there's just too much uncertainty that any given emergency abortion
Speaker 6: or life saving abortion that they in good faith believe
Speaker 6: they need to do to save the patient's life could
Speaker 6: result in charges.
Speaker 4: And so tell us what the argument of the plaintiffs is.
Speaker 6: The plaintiffs argue that the abortion bands lack clarity. There
Speaker 6: is inconsistent language across a number of the laws, and
Speaker 6: they say that they need guidance on how the law
Speaker 6: is meant to apply in emergent situations and what they
Speaker 6: prefer as The best interpretation of the law is that
Speaker 6: doctors can intervene when they, in good faith see a
Speaker 6: patient in a situation where her life and serious health
Speaker 6: risks are at stake, and that they need not wait
Speaker 6: until death is imminent in order to act on that
Speaker 6: good faith determination.
Speaker 4: Did some of the plaintiffs actually come up against a
Speaker 4: situation where their life was at risk and a doctor
Speaker 4: didn't act.
Speaker 6: Yes, many of the patients suffered really severe repercussions, including
Speaker 6: the named plaintiff, Amanda Zarowski, who became septic and spent
Speaker 6: days in the ICU as a result of being denied
Speaker 6: a medically necessary abortion for pre viable pregnancy. And as
Speaker 6: a result of that icy stay, she actually lost one
Speaker 6: of her fallopian tubes and so has much lower future fertility.
Speaker 4: So now let's go through some of the state's arguments,
Speaker 4: and one is that the state claims the women filing
Speaker 4: the suit don't have standing to file the suit. In
Speaker 4: other words, they don't have a stake in the outcome.
Speaker 4: Explain that argument.
Speaker 6: So the argument around standing shifts as circumstances changed. So
Speaker 6: the state of Texas says you can't bring a lawsuit
Speaker 6: unless you are pregnant and So the Center for Reproductive
Speaker 6: Rights has plaintiffs who are pregnant, and part of this
Speaker 6: is the notion that, well, if you're not pregnant, you
Speaker 6: can't possibly know that you'll be affected by the operation
Speaker 6: of this abortion ban. But even with pregnant patients, they
Speaker 6: then say, well, you can't possibly know that this pregnancy
Speaker 6: is going to threaten your life to a degree to
Speaker 6: which you might become eligible for these medical exceptions. They're
Speaker 6: also plaintiffs tho, who are doctors, so they are on
Speaker 6: a regular basis confronting patient to whom they have to
Speaker 6: deny care because they cannot act until their lives are
Speaker 6: in danger. So the standing argument just isn't strong. As
Speaker 6: part of this, Texas repeats over and over again. But
Speaker 6: it's not Texas's fault that people are denied abortions in
Speaker 6: emergent situations, but rather that it's the fault of doctors themselves,
Speaker 6: the individual doctors who are unwilling to act because of
Speaker 6: the statute.
Speaker 4: And just as Jeff Boyd seemed a little incredulous about
Speaker 4: the state's standing argument.
Speaker 7: Your position is that in order to challenge, to seek
Speaker 7: the kind of clarity that these plaintiffs are seeking, you
Speaker 7: have to have a woman who has some who is pregnant,
Speaker 7: who has some health condition that she believes places her
Speaker 7: life at risk or impairment to a major bodily function,
Speaker 7: but her doctor says, I don't think it does, and
Speaker 7: she has to then sue the doctor and maybe the
Speaker 7: Attorney general at that point, and then she would have standing.
Speaker 3: I don't know if that would be the only circumstance,
Speaker 3: but you would at least then know that the law
Speaker 3: is the problem and not the doctor refusing to perform
Speaker 3: an abortion.
Speaker 4: And the Assistant Attorney General at one point made this
Speaker 4: very stark statement. She said, a woman is bleeding or
Speaker 4: has amniotic fluid running down her legs, then the problem
Speaker 4: is not with the law, that is with the doctors.
Speaker 4: The state wants women to sue the doctors.
Speaker 6: Yes, so this was an option that came up over
Speaker 6: and over again in the oral argument before the Texas
Speaker 6: Supreme Court. Is that when a person is in an
Speaker 6: extreme situation where they might be eligible under the exceptions
Speaker 6: to Texas abortion bands, what they should really do is
Speaker 6: see physicians who are unwilling to act to treat them.
Speaker 6: As the plaintiffs lawyer pointed out, this is a highly
Speaker 6: unrealistic view and impractical for patients in these scenarios to
Speaker 6: go out and shop for an attorney who can file
Speaker 6: an emergency motion in state court. And on top of that,
Speaker 6: some of these plaintiffs are not pregnant people or people
Speaker 6: who are concerned about future pregnancies. Rather, they are physicians,
Speaker 6: and so the physicians standing would seem to be independent
Speaker 6: of the idea that plaintiffs should more properly be pointing
Speaker 6: the finger at doctors whose hands are tied by the law.
Speaker 4: And the state is also arguing that the law is clear.
Speaker 6: Yes, the state is arguing that the law is clear,
Speaker 6: though the state has been unwilling to explain the boundaries
Speaker 6: of the law right. Part of what's prompting this lawsuit
Speaker 6: is that, unlike in other states where the state Medical
Speaker 6: Board has offered specific guidance to physicians, the Texas Medical
Speaker 6: Board has been totally silent here, and nor has the
Speaker 6: Attorney General issued specific guidance. And one would think that
Speaker 6: if the law were actually clear, right, it allows a
Speaker 6: physician to intervene or we're dealing with premature rupture of
Speaker 6: the membranes, for instance, or molar pregnancy or other scenarios
Speaker 6: that can commonly occur in pregnancy and threaten lives, that
Speaker 6: they would say so, and they have just remained silent
Speaker 6: both the Board and the Attorney General.
Speaker 4: Is the state's position that women have to carry a
Speaker 4: feet as to turn even if the fetus is not
Speaker 4: viable or if the pregnancy presents a risk to the mother.
Speaker 6: The state's position is that the exception is extremely narrow,
Speaker 6: so it applies to threats to life, but presumably would
Speaker 6: not apply to fetal anomaly.
Speaker 4: Yes, that's right, and I believe one of the women
Speaker 4: had to carry a fetus to term even though she
Speaker 4: knew that it would not survive.
Speaker 6: Yes, So part of the argument here is on that
Speaker 6: particular score is that the state isn't achieving any state
Speaker 6: interest when it makes women carry the term pregnancy is
Speaker 6: that are destined to result in stillbirth or a very momentary,
Speaker 6: hours long life for the baby.
Speaker 4: Coming up next, where the Texas Justice is leaning in
Speaker 4: any direction? I'm June Grosso. When you're listening to Bloomberg,
Speaker 4: I've been talking to Professor Elizabeth Zepper of the University
Speaker 4: of Texas School about oral arguments before the Texas Supreme
Speaker 4: Court on that state's abortion ban. The Texas Supreme Court
Speaker 4: consists of nine Republican appointed judges. Did you see five
Speaker 4: of them leaning in one direction or another or did
Speaker 4: they seem split? What was your take on the arguments?
Speaker 6: The justices seemed all over the map, honestly, And I
Speaker 6: don't mean that as a prediction that the plaintiffs are
Speaker 6: going to win here on the merits or across the board,
Speaker 6: but rather that there seemed to be some justices who
Speaker 6: wanted to find a way to deny standing to the plaintiffs,
Speaker 6: perhaps through this argument that plaintiffs should just see doctors
Speaker 6: and Texas is not really at fault, as the state claims,
Speaker 6: But others expressed real confusion over the standing arguments and
Speaker 6: how it would be possible to deny standing to the plaintiffs.
Speaker 6: And I think they expressed some frost with the state
Speaker 6: right because here, the reason we're at the Texas Supreme Court,
Speaker 6: the reason we're in the court system, is because the
Speaker 6: Texas Medical Board has provided no guidance, because the legislature
Speaker 6: flowfully drafted an abortion van that can't be understood by
Speaker 6: the healthcare providers subject to its terms. And so I
Speaker 6: think there was a lot of frustration on that score
Speaker 6: as to what they were supposed to do.
Speaker 7: Right.
Speaker 6: Once they find standing, then they are left with the
Speaker 6: question of how to interpret the statutory language. And depending
Speaker 6: on how they interpret it, they then have to come
Speaker 6: to the plaintiff's constitutional arguments that if the statute doesn't
Speaker 6: allow physicians to act to save health and life in
Speaker 6: emergent situations, then it violates the Texas Constitution. We didn't
Speaker 6: see a whole lot of uptake of the constitutional argument,
Speaker 6: but there were some questions about in what way the
Speaker 6: Constitution would possibly reach the Texas abortion van medical dat So.
Speaker 4: If the Texas Supreme Court sides with the state, is
Speaker 4: the case over.
Speaker 6: Possibly right or very early on in the litigation if
Speaker 6: they're at the court on a preliminary in junction. So
Speaker 6: really the court is just determining whether the preliminary injunction
Speaker 6: ruling should stand. But what they say could essentially end
Speaker 6: the case. And certainly, if the Texas Supreme Court determines
Speaker 6: that these plaintiffs don't have standing, then yes, the case
Speaker 6: is dead on arrival.
Speaker 4: And if the Texas Supreme Court denies the state's request
Speaker 4: to dismiss the case, then it goes back to the
Speaker 4: district court for a full trial.
Speaker 6: Yes, we're very early on. So it goes back within
Speaker 6: the Texas state system to the Texas Trial judge for
Speaker 6: a trial on the merit.
Speaker 4: Just this month, thirteen groups filed the Meeks briefs. What
Speaker 4: do you think are the implications for this decision in
Speaker 4: and out of Texas?
Speaker 6: The implications are going to be felt first and foremost
Speaker 6: in Texas. The arguments that the plaintiffs are making as
Speaker 6: a matter of constitutional law are about the Texas Constitution,
Speaker 6: but it is part and parcel of a phenomenon we've
Speaker 6: seen in state courts so Oklahoma, North Dakota, Indiana have
Speaker 6: determined that their abortion bans has to have a life
Speaker 6: or a health exception because otherwise they violate protections on
Speaker 6: life within the state constitution. So the Texas Supreme Court
Speaker 6: could here agree and further this trend toward recognizing some
Speaker 6: limitations on how far abortion bans can go.
Speaker 4: And has the state Supreme Court made any rulings recently
Speaker 4: on abortion issues?
Speaker 6: So the Texas Supreme Court has recently been involved in
Speaker 6: the back and forth over SB eight, for example, But
Speaker 6: what they've done there is usually take on relatively narrow
Speaker 6: questions with regard to SBA, the question was simply around
Speaker 6: whether the licensing board could be sued, and the Texas
Speaker 6: Supreme courts that know and therefore killed the SBA. What
Speaker 6: was left of the SB eight lawsuit after it left
Speaker 6: the United States Supreme Court. So not a lot of
Speaker 6: activity on the merits of protections for abortion in the
Speaker 6: state of Texas.
Speaker 4: Why are there so many abortion laws? Why isn't there
Speaker 4: one comprehensive law.
Speaker 6: Part of it is that we had a series of
Speaker 6: laws that predate DOBS, which overturned or a viewwade. So
Speaker 6: we have laws that regulate abortions for minors, we have
Speaker 6: laws around informed consent, we have a number of abortion
Speaker 6: restrictions that pre date our total bands, and then we
Speaker 6: have our pre road Statute, for instance, which long predates
Speaker 6: DOBS in the contemporary moment. So there's just differences in
Speaker 6: language that show up when you look across all of
Speaker 6: the abortion laws.
Speaker 4: We've seen backlash against abortion bands in other red states.
Speaker 4: Is there anything like that brewing in Texas?
Speaker 6: We've seen very minor developments. The Texas state legislature this
Speaker 6: year enacted in extremely narrow affirmative defense to the abortion bans,
Speaker 6: recognizing that premature rupture of the membranes, for instance, and
Speaker 6: ectopic pregnancies of all kinds should not be within the
Speaker 6: abortion ban. But it's an affirmative defense, so in fact
Speaker 6: it applies pretty narrowly. Doctors would have to be willing
Speaker 6: to face criminal charges or face revocation of their medical
Speaker 6: license and then raise a defense that this person was
Speaker 6: experiencing a defection ectopic pregnancy, for example. So pretty near
Speaker 6: in terms of the changes we're seeing. We do not
Speaker 6: have a process by which the people can put on
Speaker 6: the ballot a constitutional amendment that might protect reproductive rights
Speaker 6: or do away with some of the manifestations of our
Speaker 6: abortion bands.
Speaker 4: And finally, the state really harped on the standing argument.
Speaker 4: Do you think the court will at least find that
Speaker 4: the plaintiffs here have standing.
Speaker 6: Whether it's the doctors have standing, even if the women don't.
Speaker 6: It's almost impossible to imagine a scenario where you can't
Speaker 6: count the vote to say at least one plaintiff, which
Speaker 6: is all they need, has standing, because standing is a
Speaker 6: principle that's going to apply across different areas of law,
Speaker 6: and I don't think the Texas Supreme Court is going
Speaker 6: to be eager to totally shut the courtroom doors to
Speaker 6: plaintiffs in a lot of different types of lawsuits, not
Speaker 6: just abortion related lawsuits.
Speaker 4: It'll be a while before we hear from the Texas
Speaker 4: Supreme Court. They're expected to rule by June. Thanks so much, Liz.
Speaker 4: That's Professor Elizabeth Zepper of the University of Texas Law
Speaker 4: School coming up next. Double Jeopardy at the Supreme Court.
Speaker 4: I'm June Grosso and you're listening to Bloomberg. A majority
Speaker 4: of Supreme Court justices seemed to agree that a Georgia
Speaker 4: man cannot be prosecuted twice for murdering his adoptive mother
Speaker 4: after a jury issued verdicts that found him both sane
Speaker 4: and insane. The jury found Damien mc calrath not guilty
Speaker 4: of malice murder by reason of insanity for stabbing Diane
Speaker 4: McIlrath over fifty times in twenty twelve, but he was
Speaker 4: found guilty, though mentally ill, of felony murder and aggravated assault.
Speaker 4: The Georgia Supreme Court ruled that wasn't legally possible throughout
Speaker 4: the verdicts and ordered a new trial, but McIlrath argues
Speaker 4: that under the Fifth Amendment's double jeopardy clause. He can't
Speaker 4: be prosecuted again for the charge he was acquitted of.
Speaker 4: Justice Neil Gorsuch joined some of the members of the
Speaker 4: court's liberal wing in expressing the importance of respecting a
Speaker 4: jury's verdict of acquittal.
Speaker 8: The two hundred and thirty years in this country's history
Speaker 8: we have respected acquittals without looking into their substance and
Speaker 8: without looking at how they fit with other counts, and said,
Speaker 8: a jury is a check on judges, it's a check
Speaker 8: on prosecutors, it's a check on overreach. It's part of
Speaker 8: our democratic system.
Speaker 4: And we do not ever.
Speaker 8: Talk about whether they make sense to us. They may
Speaker 8: be products of compromise, they may be inconsistent with verdicts
Speaker 8: on other counts. We don't question them. And that this
Speaker 8: is a first time this issue has arisen here. Shouldn't
Speaker 8: that tell us something?
Speaker 4: Joining me is former federal prosecutor George Newhouse of Richard's
Speaker 4: Carrington double jeopardy. I think everyone has some idea, perhaps incorrect,
Speaker 4: of what double jeopardy means from the movies and TV.
Speaker 4: Tell us what it means.
Speaker 1: The double jeopardy clause of the Constitution and particularly the
Speaker 1: Fifth Amendment is very clear. It basically says that the
Speaker 1: government gets one shot, one chance to convict the defendant
Speaker 1: of a crime, and if the jury finds a defendant
Speaker 1: not guilty, then the government is unable to ask the
Speaker 1: judge for a retrial. It gets one chance. There are
Speaker 1: various exceptions to it. A big one, for example, is
Speaker 1: the state is unsuccessful the federal government. A different sovereign
Speaker 1: can basically bring the defendant back up on the same charge,
Speaker 1: only this time of federal charge, and double jeopardy doesn't apply.
Speaker 1: But if it's the same sovereign here it's the state
Speaker 1: of Georgia, they get one chance. And the jury in
Speaker 1: this case apparently returned what appeared to be an inconsistent
Speaker 1: verdict between three counts. The state is arguing that that
Speaker 1: should be an exception to the double jeopardy rule, and
Speaker 1: that is an interesting legal question.
Speaker 4: Yeah, so tell us a little bit more about the
Speaker 4: different verdicts here.
Speaker 1: Happy to So, the basic facts are this is twenty twelve.
Speaker 1: A delusional defendant, Damian Mcroff, believed that his mother was
Speaker 1: trying to poison him and as a result, stabbed her
Speaker 1: to debt. He of course, then washed up called nine
Speaker 1: to eleven, told the dispatcher what he'd done and why
Speaker 1: he was right to have done it. So clearly he
Speaker 1: went to trial on three counts, by the way, and
Speaker 1: that's where this comes up to the three separate charges.
Speaker 1: The first one in under Georgia law is called malice
Speaker 1: of murder, which is equivalent to a first degree murdered
Speaker 1: I've always the most serious charge, the one that typically
Speaker 1: can carry him capital punishment. And then there were two
Speaker 1: other counts, a felony murder rule, which means that he
Speaker 1: killed someone in connection with committing a felony, in this case,
Speaker 1: an aggravated assault. And so the third charge was aggravated assault.
Speaker 1: And you might ask why to prosecutors bring three separate
Speaker 1: charges when there's really one one act occur to killing,
Speaker 1: And they do that because sometimes they want to present
Speaker 1: the jury with the option of convicting on a lesser
Speaker 1: offense if they think they might have a problem with
Speaker 1: the principal offense. And that's exactly what happened here. The
Speaker 1: jury deliberated, and of course the defense was he was insane,
Speaker 1: so he lacked the criminal intent to commit murder, and
Speaker 1: the jury deliberated and found him not guilty by reason
Speaker 1: of insanity on the first count, saying he was crazy,
Speaker 1: but on counts two and three, the felony murder and
Speaker 1: the aggregated assault, the jury found that he was sane
Speaker 1: and convicted him. The State of Georgia, unhappy with that,
Speaker 1: went to the court and said, well, we need a
Speaker 1: new trial, and the court said why, and the state said,
Speaker 1: because these verdicts are logically inconsistent. You can't be crazy
Speaker 1: on one count, the worst count, but saints on the
Speaker 1: other counts, And that went all the way to the
Speaker 1: Georgia Supreme Court, which agreed. The Georgia Supreme Court said
Speaker 1: the verdicts on these two different counts are logically repugnant,
Speaker 1: and as a result it vacated the not guilty verdict
Speaker 1: and told the state that they are free to retry him.
Speaker 1: And that's what went up to the Supreme Court whether
Speaker 1: there should be an exception to the double jeopardy clause,
Speaker 1: and the exception would allow if the verdicts were logically inconsistent,
Speaker 1: which jury verdicts are, by the way, frequently, they'd be
Speaker 1: allowed to retry him.
Speaker 4: George Prosecutors are normally not allowed to appeal acquittals are they,
Speaker 4: I mean, how do they even get to the Georgia
Speaker 4: Supreme Court.
Speaker 1: Well, that's a great, great question. So clearly what happened
Speaker 1: is the prosecutors went to the trial judge and asked
Speaker 1: the trial judge to vacate the not guilty verdict. So
Speaker 1: in effect, they asked the judge to ignore the not
Speaker 1: guilty verdict and set the matter over for trial. And
Speaker 1: that's where the double jeopardy issue arose, because, as I said,
Speaker 1: the rule in this country for the last two hundred
Speaker 1: and thirty years of justice courses pointed out is you
Speaker 1: only get one chance, and if that jury verdict comes
Speaker 1: back not guilty, there is can be no retrial.
Speaker 4: You mentioned Justice Gorsuch and he was pretty fervent about
Speaker 4: the respect for acquittals. It's a check on judgers, it's
Speaker 4: a check on prosecutors, it's a check on overreach.
Speaker 3: Is he right?
Speaker 1: Justice Gorsage is absolutely correct, We don't. The court system
Speaker 1: does not second guess acquittals, though, for example, if the
Speaker 1: acquittal is based upon what's called jury nullification, they simply
Speaker 1: ignore the evidence. You know, where that the verdicts is
Speaker 1: illogically inconsistent between two different counts. The court system is
Speaker 1: not allowed to second guess that though, for example in
Speaker 1: this case, what usually happens here probably happened in this
Speaker 1: case was the inconsistent verdicts were product of compromise. Justice
Speaker 1: Gorsage address that they may be products of compromise, they
Speaker 1: may be inconsistent with other verdicts. We Justice Courses said,
Speaker 1: the court system does not question those verdicts, and that
Speaker 1: has been the law in this country for two hundred
Speaker 1: and thirty years. As far as I know, Inconsistent vertis
Speaker 1: happen all the time. I tried one as a prosecutor,
Speaker 1: and the judge said, well, we have two verdicts, one
Speaker 1: is inconsistent with the other, and the case is finished,
Speaker 1: so double jeopardy apply.
Speaker 4: The George Solicitor General argued that there really had not
Speaker 4: been an acquittal because under Georgia law, a jury cannot
Speaker 4: issue special affirmative findings that facially contradict each other.
Speaker 1: Well, I don't know about that, but the fact of
Speaker 1: the matter is whatever they issued, they returned a not
Speaker 1: guilty verdict on the principal count, the first degree murder
Speaker 1: malice of murder, and that resolved that case. So that's
Speaker 1: their argument. But I don't think it's going to gain
Speaker 1: much traction in the Supreme Court.
Speaker 4: Yeah, Justice Katanji Brown Jackson said, even if we know
Speaker 4: that they are inconsistent. So what I mean the point
Speaker 4: is we've said a jury can issue in consistent.
Speaker 1: Verdicts that is established law. Juries can compromise, juris can
Speaker 1: acquit sometimes based upon all of the These are powers
Speaker 1: that you won't find in any law book. So the
Speaker 1: jurors are not told they have these powers, but as
Speaker 1: a matter of fact, they can return any verdict that
Speaker 1: they deem is appropriate and compromise verdicts, which this point
Speaker 1: one probably was typically involves a logical inconsistency. So this
Speaker 1: is something that happens a lot. This is and prosecutors notice,
Speaker 1: in fact, one might argue that's why they charge the
Speaker 1: two other counts. They'm act but lesser degree of punishment.
Speaker 1: It gives the jury a choice.
Speaker 4: Now, one of the justices, who was not ever a prosecutor,
Speaker 4: Samuel Alito, said it's his understanding that in some states,
Speaker 4: trial judges can tell a jury that its verdicts are
Speaker 4: irreconcilable and instruct them to go back and deliberate.
Speaker 1: Have you ever seen that I've never seen that, and
Speaker 1: I don't believe that that's an accurate statement. I think,
Speaker 1: as I understand the Missouri procedure, before the verdict is returned,
Speaker 1: the jury would send in a note would indicate the inconsistency,
Speaker 1: and in that case the law allows the judge before
Speaker 1: the verdict is returned. Now verdicts is return with it,
Speaker 1: they pick not guilty and signed by the four person
Speaker 1: and delivers in court. Before that happens, the court can,
Speaker 1: of course always send the jurors back with an instruction
Speaker 1: that they should continue to deliberate. But once that jury
Speaker 1: verdict is signed and delivered in court, there's no sending
Speaker 1: it back. At that point, I believe that Supreme Court
Speaker 1: will say it.
Speaker 4: Is over and for good, and by the end of
Speaker 4: the arguments, I guess the writing was on the wall,
Speaker 4: and Justice Kavanaugh asked the Solicitor General what would happen
Speaker 4: if Georgia lost. Could Michel Raft's two guilty verdicts, which
Speaker 4: had been declared no by the Georgia Supreme Court, be reinstated.
Speaker 1: I believe they could be reinstated. That would be the
Speaker 1: result of that of that judgment, So the convictions would
Speaker 1: stand and those of course could be independently appealed, but
Speaker 1: they could be resurrected. And if they couldn't be resurrected,
Speaker 1: as to those counts, there probably could be a retrial,
Speaker 1: but they cannot have a retrial on account where the
Speaker 1: jury returned a not guilty verdict, whatever their reasoning was.
Speaker 4: So you think they could have a retrial on the
Speaker 4: other counts.
Speaker 1: No, I think in all likely that the court would say,
Speaker 1: based upon the decision of the Supreme Court, those two
Speaker 1: convictions stand and are resurrected. There's no need for retrial.
Speaker 1: You already have a conviction.
Speaker 4: Do you think that'll be a narrow decision, you know,
Speaker 4: just this case, or they might issue some broad statements
Speaker 4: about acquittals.
Speaker 1: Well, the Supreme Court generally only decides the question that's
Speaker 1: presented to it, so they take the narrow approach. And
Speaker 1: here I see a short, probably unanimous opinion affirming that
Speaker 1: double jeopardy rule means exactly what it says. You get
Speaker 1: one chance, and there's established precedent for this, and the
Speaker 1: argument that an inconsistent verdict between two different counts in
Speaker 1: some way in validates the acquittal. The court will say
Speaker 1: there's no law for that, and the constitution doesn't permit it.
Speaker 4: As Gorst said, an acquittal is an acquittal is an acquittal,
Speaker 4: and just as Kagan pointed out, that either the jury
Speaker 4: made a big mistake or they decided to compromise and
Speaker 4: show leniency.
Speaker 1: This happens all the time. Jurors compromise. They can't agree
Speaker 1: on the result for the most serious count. They know
Speaker 1: which one is the most serious account, and there wasn't
Speaker 1: an agreement on whether or not he was clearly insane,
Speaker 1: but they could agree that he should be punished, so
Speaker 1: they agree to convict on the lesser included offense. It happens,
Speaker 1: and this is, by the way, why prosecutors sometimes will
Speaker 1: not give the jury the choice. They give the jury
Speaker 1: only the most serious count, and therefore the jury doesn't
Speaker 1: have the ability to compromise. You give them the choice
Speaker 1: between two, you're implicitly inviting compromise. So basically, the Georgia
Speaker 1: prosecutors set this up.
Speaker 4: But if you don't give them the choice, you might
Speaker 4: not get a guilty Verdi.
Speaker 1: That's right, No, that's right, shooting class. If you're running
Speaker 1: the risk when you don't give them any other choice,
Speaker 1: you don't give them the less or included, you run
Speaker 1: the risk that the defendant will walk, particularly in a
Speaker 1: case like this, because this is a strong case that
Speaker 1: you correctly put it out. He's clearly insane. He believed
Speaker 1: his mother was trying to poison him. I'm assuming that
Speaker 1: he's not, although we've read in the paper today about
Speaker 1: the wife of the intelligence service chief in the Ukraine
Speaker 1: who has been apparently poisoned by the Russians. So poisonings
Speaker 1: do occur.
Speaker 4: It's always a pleasure to have you on, George, Thanks
Speaker 4: so much. That's former federal prosecutor George Newhouse of Richard's Carrington.
Speaker 4: And that's it for this edition of The Bloomberg Law Show.
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