Latest / Bloomberg Law / Trial Over Tupac Shakur's Murder, 30 Years Later

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Trial Over Tupac Shakur's Murder, 30 Years Later · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grosseol from Bloomberg Radio.
0:11
Speaker 2: Chebaka's gun down in a drive by shooting from a
0:15
Speaker 2: white Catalan in an act of revenge.
0:19
Speaker 3: Tupac Shakur is a cultural icon, considered one of the
0:24
Speaker 3: most influential and versatile rappers of all times. Despite dying
0:29
Speaker 3: at the age of twenty five in a drive by
0:32
Speaker 3: shooting in Las Vegas in nineteen ninety six, his murder
0:36
Speaker 3: was considered one of the biggest unsolved cases of our time,
0:41
Speaker 3: and now three decades later, Dwayne Keefe d Davis is
0:45
Speaker 3: on trial for orchestrating Shakur's murder. Here's how prosecutor Banupa
0:50
Speaker 3: Lal described it.
0:52
Speaker 4: Dwayne Davis did.
0:53
Speaker 2: Not hold the true but what he did do was
0:57
Speaker 2: planned the retaliation for the beating of his nephew. You
1:03
Speaker 2: will learn that Dwayne Davis got the gun. You will
1:07
Speaker 2: learn that he got into a white Cadillac. You will
1:11
Speaker 2: learn what the opportunity presented itself for retribution. Dwayne Davis
1:18
Speaker 2: made sure that the shooters armed and read.
1:22
Speaker 4: To execute their way.
1:24
Speaker 3: The strongest evidence in the prosecution's case appears to be
1:28
Speaker 3: Davis's own words. For years the former gang leader, actually
1:33
Speaker 3: boasted about his involvement in shooting Shakur, laying out the
1:38
Speaker 3: details in multiple interviews with police and the FBI, then
1:42
Speaker 3: on the pages of a memoir in twenty nineteen, and
1:46
Speaker 3: in media interviews. But in an unusual posture, the defense attorney,
1:51
Speaker 3: Michael Senfitt told the jurors his client was not to
1:55
Speaker 3: be believed.
1:56
Speaker 4: Just look at the actual facts. What facts do you
1:59
Speaker 4: have for any of what keped said? Eddy's interviews are
2:03
Speaker 4: in the book.
2:04
Speaker 3: But Suge Knight, who was in the car with Shakur
2:07
Speaker 3: when he was shot, thinks Davis will have a hard
2:10
Speaker 3: time convincing a jury. As he told ABC News in
2:14
Speaker 3: an interview from prison.
2:16
Speaker 1: Everything he's said he talked about, he every tone only
2:19
Speaker 1: seth say what are you going to do? He raised
2:23
Speaker 1: Arto recording through the interviews he did.
2:25
Speaker 3: The sixty three year old Davis faces life in prison
2:29
Speaker 3: if he's convicted of the murder. My guest is former
2:32
Speaker 3: federal prosecutor Nima Romani, President and co founder of West
2:37
Speaker 3: Coast Trial Lawyers. Nima start with the challenges of trying
2:41
Speaker 3: this thirty year old case where most of the people
2:44
Speaker 3: who were involved are no longer alive.
2:47
Speaker 5: It's very difficult to prosecute a case thirty years later,
2:51
Speaker 5: especially because everyone who is in Kiefi D's vehicle is dead,
2:55
Speaker 5: many of them for gang related reasons. Really, the only
2:58
Speaker 5: percipient witness that we know so far as Shuld Knight,
3:02
Speaker 5: who of course was driving Tupac's vehicle.
3:05
Speaker 4: But I think it's unlikely that he's.
3:08
Speaker 5: Going to testify in this case and identify either the
3:11
Speaker 5: shooter or even put Davis in the vehicle.
3:15
Speaker 4: The other issue is Tupac himself.
3:18
Speaker 5: The testimony that came out on the first day of
3:20
Speaker 5: trial was that he refused to snitch and identify the shooter,
3:25
Speaker 5: saying that he would take care of it himself. Of course,
3:28
Speaker 5: he's succumbed to his injuries at the hospital and was
3:31
Speaker 5: unable to do so.
3:32
Speaker 3: Does it seem like the best evidence the prosecution has
3:37
Speaker 3: is Keefyd's own words, because he bragged about being involved
3:43
Speaker 3: in the killing many times over the years and wrote
3:47
Speaker 3: a memoir to that effect.
3:49
Speaker 5: I've never covered a case like this that's based almost
3:52
Speaker 5: entirely on the defense's own words. The opening statements were surrealed,
3:58
Speaker 5: you have the prosecution calling Davis a criminal mastermind, the
4:03
Speaker 5: shot caller of this gang. And then you have the
4:06
Speaker 5: defense on the other hand, trying to undermine their client's
4:09
Speaker 5: own credibility. They said he was full of crap. They
4:13
Speaker 5: said this was all bs. They essentially were arguing that he's.
4:17
Speaker 1: A fool who was.
4:19
Speaker 4: Bragging to make himselves seem more important.
4:22
Speaker 5: Gain street cred in the gang culture, and to sell books.
4:25
Speaker 4: I've never seen anything like it.
4:28
Speaker 3: And at this point, the defense is claiming that there's
4:31
Speaker 3: no evidence that Davis was even in Las Vegas that night.
4:36
Speaker 4: This was a really important point.
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Speaker 5: So Davis has said that he wasn't even in Vegas
4:42
Speaker 5: in interviews he's done from jail with local media outlets
4:46
Speaker 5: in Vegas. But during opening statements, the defense said that
4:50
Speaker 5: Davis lied about being ringside or close to it in
4:54
Speaker 5: the Mike Tyson fight.
4:55
Speaker 4: He wasn't even there. He wasn't at the fight.
4:57
Speaker 5: He wasn't in the city, which would be absolutely devastating
5:03
Speaker 5: to the prosecution's case.
5:04
Speaker 4: If that's true.
5:06
Speaker 5: They need witnesses to at least put him in Vegas
5:10
Speaker 5: and Clark County, otherwise they're going to have significant problems.
5:14
Speaker 3: He did many interviews over the years with the FBI,
5:18
Speaker 3: with Las Vegas Police, with LA Police, where he again
5:23
Speaker 3: boasted about his involvement in this shooting. I mean back
5:26
Speaker 3: to I think nineteen ninety eight. He talked to the
5:29
Speaker 3: FBI first, So I mean, is the jury going to
5:32
Speaker 3: be asking so if he talked to them all these times,
5:35
Speaker 3: why wasn't anything done, why did it take until twenty
5:40
Speaker 3: twenty three to indict him.
5:43
Speaker 5: That's one of the best arguments the defense has. They're
5:46
Speaker 5: arguing that even LAPD, even the FBI, they don't believe Davis.
5:51
Speaker 5: That's why they didn't charge him. And you're right, we're
5:54
Speaker 5: talking about going back to I think nineteen ninety seven
5:56
Speaker 5: was his first interview with LAPD after Biggie Smalls was
6:01
Speaker 5: killed outside the Peterson Auto Museum in Los Angeles. Of course,
6:05
Speaker 5: there's the infamous two thousand and eight interview with the
6:09
Speaker 5: Federal Task Force that became the issue of much litigation.
6:13
Speaker 5: He was given immunity. The prosecution argued that it was
6:18
Speaker 5: just use immunity. It didn't bind other jurisdictions, including Nevada.
6:23
Speaker 5: This was litigated all the way to the Nevada Supreme Court,
6:27
Speaker 5: where the defense argued that it was transactional immunity, he
6:30
Speaker 5: couldn't be prosecuted at all. Ultimately, the judge agreed with
6:34
Speaker 5: the prosecution that one jurisdiction cannot contractually bind another. And
6:40
Speaker 5: I think that two thousand and eight interview, as well
6:43
Speaker 5: as the twenty nineteen memoir, I think those are the
6:46
Speaker 5: most damning pieces of evidence for Davis and the defense.
6:50
Speaker 3: What do you think about the defense saying, oh, he
6:53
Speaker 3: was bragging in an interviews, Davis has said, you know,
6:56
Speaker 3: he was trying to make some money off this, so only.
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Speaker 5: Pause, Well, the prosecution is going to need to corroborate
7:03
Speaker 5: these admissions or confessions with some independent evidence. It's gonna
7:08
Speaker 5: be very hard when you have the defendant now arguing
7:11
Speaker 5: that he's trying to sell books and seem more important.
7:13
Speaker 5: And ultimately, I think at a minimum, they got to
7:16
Speaker 5: put them in the vehicle, and the question is do
7:19
Speaker 5: they have the witnesses to do so. Their witnesses are
7:23
Speaker 5: going to testify about this white Cadillac that pulled up
7:25
Speaker 5: next to a BMW. But the challenge you, like you said,
7:29
Speaker 5: is all the precipient witnesses to the shooting, they're all dead.
7:34
Speaker 5: They can't testify, And of course, under the rules of
7:37
Speaker 5: hearsay and the confrontation clause and the Constitution, and accused
7:42
Speaker 5: has the right to cross examine his accuser.
7:44
Speaker 3: Also, they don't have the gun, they don't have the car.
7:47
Speaker 3: I don't know if they have any physical evidence at all.
7:51
Speaker 4: That's the concern.
7:52
Speaker 5: You're normally in a murder case, you're gonna have ballistics,
7:54
Speaker 5: you're gonna have DNA, you're gonna have fingerprints of any
7:57
Speaker 5: of that sell side evidence. So you're relying on these admissions.
8:03
Speaker 5: So obviously there's a potential motive. I think we're going
8:06
Speaker 5: to hear a lot of testimony about the beef between
8:10
Speaker 5: these gangs. And one other interesting wrinkle is that that
8:15
Speaker 5: may be helpful for the defense is that Davis previously
8:18
Speaker 5: said that Shanda Di Combs offered him a million dollars
8:21
Speaker 5: to kill Tupac. Now, of course Combs is denying that.
8:26
Speaker 5: But if that particular and comes isn't going to come
8:29
Speaker 5: anywhere near this trial. Like Shug Knight, he has his
8:32
Speaker 5: own legal problems. But if that statement is also untrue,
8:36
Speaker 5: it sort of leads to the conclusion that this is
8:39
Speaker 5: all just a complete fabrication by someone that had nothing
8:44
Speaker 5: to do with it. That's why that independent, corroborating evidence
8:48
Speaker 5: is going to be critical for the state.
8:51
Speaker 3: So basically you just can't believe anything that Davis says.
8:55
Speaker 4: Well, that's the point.
8:57
Speaker 5: The more elaborate the lies and the Combe part being
9:00
Speaker 5: one of them, the better it is for the defense. Again,
9:04
Speaker 5: it's really bizarre that they're just trying to undermine their
9:08
Speaker 5: own client's credibility. I've never seen anything like this in
9:12
Speaker 5: any case I've ever covered. So the more lies there are,
9:15
Speaker 5: and the bigger those lies, the better it is for
9:17
Speaker 5: the defense.
9:19
Speaker 3: The defense attorneys also pointing to missing documents in the
9:24
Speaker 3: original investigation, detectives work as being biased, sloppy, and incompetent
9:31
Speaker 3: and even you know, some corruption there. I mean, that's
9:34
Speaker 3: an argument that we've heard many, many times before.
9:38
Speaker 4: That's the challenge when you have these types of cases.
9:40
Speaker 5: Because I live and work in Los Angeles, and I
9:44
Speaker 5: was here in the nineties, and obviously this is not
9:48
Speaker 5: a Los Angeles case, but there's a perception or there was,
9:51
Speaker 5: that LAPD was corrupted.
9:53
Speaker 4: During that time.
9:55
Speaker 5: Rampart, Rodney King, the failure to ever arrest anyone for
9:59
Speaker 5: the Tupac or Biggie murders. There are a lot of
10:02
Speaker 5: people who believe that law enforcement were complicit. It was
10:07
Speaker 5: bad boy. So the challenge is when you have a
10:09
Speaker 5: thirty year old case.
10:10
Speaker 4: I'm not saying.
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Speaker 5: Everyone is of age to remember when Tupac was killed,
10:16
Speaker 5: but some of these jurors have very strong, preconceived notions
10:22
Speaker 5: as to who was responsible for Tupac's death.
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Speaker 4: That becomes a challenge.
10:26
Speaker 5: And you know, there are other cases as well where
10:30
Speaker 5: this has been an issue. I think a recent example
10:32
Speaker 5: not a murder case, but the fire case here in
10:35
Speaker 5: Los Angeles where I live. Jonathan Render connect He was
10:37
Speaker 5: charged for arson, but that was after many, many months
10:41
Speaker 5: when people believe that the LA Fire Department, the LA
10:44
Speaker 5: Department of Water and Power, mayor Karen Bass, mother Nature,
10:47
Speaker 5: they're all responsible for the devastating Malibu and Palisades fire.
10:52
Speaker 5: Then the US Attorney's office charges this arsonist and ultimately
10:57
Speaker 5: the jury hung tend to in favor of a quick
11:00
Speaker 5: and one of the jurors that spoke out and said, no,
11:04
Speaker 5: this wasn't his fault.
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Speaker 4: He's being scapegoaded.
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Speaker 5: So I think the defense has an argument here that
11:09
Speaker 5: it was law enforcement that failed to do their job.
11:11
Speaker 5: And by the way, this is not the defense lawyers
11:13
Speaker 5: argue in almost every case, right, a poor, sloppy investigation
11:17
Speaker 5: and the fact that it took thirty years to bring
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Speaker 5: any criminal charges against one of or actually who I
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Speaker 5: believe is the greatest rapper of all time being murdered
11:27
Speaker 5: does play into that argument.
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Speaker 3: Stay with me. Coming up next on the Bloomberg Law Show,
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Speaker 3: I'll continue this conversation with former federal prosecutor Nima Romani.
11:36
Speaker 3: What's the likelihood that the defendant might take the stand?
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Speaker 3: This is Bloomberg. Fans of the late rapper Tupac Shakourt
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Speaker 3: stood outside the Las Vegas courthouse as a trial thirty
11:51
Speaker 3: years in the making started in a courtroom where Dwayne
11:55
Speaker 3: KEEFD Davis is accused of Shakur's murder in a drive
12:00
Speaker 3: shooting in nineteen ninety six. Some fans, like Derek Lee
12:04
Speaker 3: Stanton Junior, say they're prepared to stick it out as
12:08
Speaker 3: long as the trial lasts.
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Speaker 5: It's more important than ever right now to even be
12:12
Speaker 5: having this conversation be brought up, for everybody to be
12:16
Speaker 5: focusing on this, and to even want to find suggestice
12:19
Speaker 5: for Tucrose Court.
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Speaker 3: I've been talking to former federal prosecutor Nima Romani, president
12:24
Speaker 3: of West Coast Trial Lawyers. Tubac remains a cultural icon.
12:29
Speaker 3: He's considered by many, and I guess you to be
12:33
Speaker 3: one of the most influential and versatile rappers of all time.
12:37
Speaker 3: Fans of Tubac are standing outside the courthouse. How does
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Speaker 3: that play, if at all, into the way the jury
12:45
Speaker 3: considers the case.
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Speaker 5: I think it helps the prosecution because to the extent
12:51
Speaker 5: that you have a beloved victim, jurors are don't want
12:55
Speaker 5: to hold someone anyone responsible. Obviously, you know of cases
13:00
Speaker 5: where and again I don't condone any type of violence,
13:03
Speaker 5: but if you're looking at a very different type of
13:06
Speaker 5: case would be Luigimanngoni because health insurance is so unpopular
13:12
Speaker 5: that that's a challenge for the prosecution in that case
13:15
Speaker 5: and certainly a benefit to the defense.
13:18
Speaker 4: Now.
13:18
Speaker 5: I don't, of course condone violence for any reason, but
13:21
Speaker 5: when your victim is very well liked, I think that's
13:24
Speaker 5: an advantage for the prosecution because the jurors are going
13:26
Speaker 5: to want to hold someone responsible.
13:28
Speaker 3: The trials expected to last between four to six weeks,
13:32
Speaker 3: and prosecutors are expected to call thirty five to forty
13:36
Speaker 3: five witnesses. We've discussed how no one who was in
13:40
Speaker 3: the car, except allegedly for the defendant, is still alive.
13:46
Speaker 3: Shug Knight, who's serving time in prison for another crime,
13:50
Speaker 3: has said he doesn't want to testify. So besides retired
13:54
Speaker 3: police officers and detectives and perhaps some people who were
13:57
Speaker 3: at the hotel or the fight, who else do you
14:01
Speaker 3: think is on the prosecution's witness list.
14:04
Speaker 5: I think they're not going to be your witnesses in
14:06
Speaker 5: the traditional sense, and that they didn't actually perceive the murder.
14:09
Speaker 5: I think we're going to see a lot of people
14:11
Speaker 5: talk about this feud, you know, this history, the obviously
14:17
Speaker 5: the fight at the MGM, basically setting the stage and
14:21
Speaker 5: really telling a story of why Davis would be motivated
14:25
Speaker 5: to shoot and kill or orchestrate the murder of Tupac Shakur.
14:30
Speaker 5: So I expect there to be a lot of witnesses
14:32
Speaker 5: telling that story, But as far as precipient witnesses, you're right,
14:36
Speaker 5: soon I don't think there are many, if any.
14:38
Speaker 2: At all.
14:39
Speaker 3: Do you think it'll end up being does the jury
14:42
Speaker 3: believe what Davis said before and through the years, or
14:46
Speaker 3: do they believe what he's saying now and he's been
14:48
Speaker 3: saying only since he was arrested.
14:52
Speaker 5: I think it's a fascinating case because it's really based
14:57
Speaker 5: on what Davis has said. Now, if you're the p execution,
15:00
Speaker 5: I think you get there in a couple ways. One,
15:03
Speaker 5: you have to show that Davis's story has been consistent
15:06
Speaker 5: over the years, over the past almost thirty years now.
15:10
Speaker 4: If the story is consistent, that's helpful.
15:12
Speaker 5: There's inconsistencies because when people lie, they can obviously often
15:17
Speaker 5: change their stories over time, especially after many years. The
15:21
Speaker 5: second is that corroboration I talked about. I mean, they
15:24
Speaker 5: need something. If they're just hanging their hat on the
15:28
Speaker 5: confessions alone, I think that's challenging, especially because, like the
15:32
Speaker 5: defense argued, no one else has filed charges notwithstanding these confessions.
15:37
Speaker 3: The defense blinds to call just a handful of witnesses.
15:42
Speaker 3: The defense attorney hasn't said whether the defendant will take
15:45
Speaker 3: the stand in his own defense if he testifies. Are
15:49
Speaker 3: the jurors supposed to believe him now, supposed to believe
15:52
Speaker 3: him before?
15:52
Speaker 4: Yeah?
15:53
Speaker 5: I think if I'm the defense, I do not under
15:57
Speaker 5: any circumstances put Davis on the stand, someone that is
16:01
Speaker 5: going to be completely destroyed on across examination. Maybe you
16:05
Speaker 5: want him to be destroyed because you want him to
16:08
Speaker 5: just look so incompetent.
16:10
Speaker 4: You want him to be a bumbling fool.
16:12
Speaker 5: So maybe it would be a mad genius move, but
16:17
Speaker 5: it's very, very risky for this type of defendant. He's
16:21
Speaker 5: obviously opened his mouth many many times when he should
16:24
Speaker 5: not have. Even when he was in jail, he was
16:27
Speaker 5: talking to reporters, right. It's really unheard of unless there's
16:30
Speaker 5: a specific pr or other reasons while there's a pending
16:33
Speaker 5: criminal case for a defendant to talk to reporters.
16:37
Speaker 4: I mean, it certainly happens.
16:38
Speaker 5: We've seen it, and I believe with Scott Peterson and
16:41
Speaker 5: others who have a certain narcissism to them. But it
16:46
Speaker 5: is risky, and if I were the defense here, I
16:49
Speaker 5: would kind of stick with with what I got, which
16:53
Speaker 5: is really reasonable doubt because the prosecution is at a
16:57
Speaker 5: disadvantage because so much time has passed and most of
16:59
Speaker 5: the witnesses are dead.
17:01
Speaker 3: A jury of sixteen people, six man and ten women
17:05
Speaker 3: was seated, so four are alternates. Potential jurors were questioned
17:09
Speaker 3: about their knowledge of gang's guns, hip hop music, and
17:12
Speaker 3: memories of the nineteen nineties music scene. Among the jurors,
17:17
Speaker 3: you have a self help guru who once had a
17:20
Speaker 3: shoplifting habit, a motorcycle riding, retired gemologist who says she'd
17:25
Speaker 3: never heard of Tupac but doesn't have a problem with
17:28
Speaker 3: gang culture, and a maleman who used to listen to
17:30
Speaker 3: Tupac's music back in the nineties. So you appear to
17:33
Speaker 3: have a very diverse jury there.
17:35
Speaker 5: I say this respectfully. I am licensed in Nevada. We
17:39
Speaker 5: have an office in Las Vegas. But Vegas can have
17:44
Speaker 5: some interesting folks that travel through there, so I'm not
17:47
Speaker 5: surprised there's a diverse cast of characters.
17:51
Speaker 4: Look, I always say it's twelve men and.
17:52
Speaker 5: Women who can't get out of jury duty, right, So
17:55
Speaker 5: I'm not surprised you have all types on that panel.
17:58
Speaker 3: Here. He's charged with murder with a deadly weapon with
18:01
Speaker 3: the intent to promote, further or assist a criminal gang.
18:06
Speaker 3: Do you think the jurors will have any problem with
18:08
Speaker 3: the fact that the prosecution says that the defendant himself
18:13
Speaker 3: didn't pull the trigger.
18:15
Speaker 4: I don't think so.
18:15
Speaker 5: I think the jury instructions are pretty clear as well
18:18
Speaker 5: established that you can be convicted as a co conspirator,
18:21
Speaker 5: you can be convicted as an accomplice. The classic law
18:24
Speaker 5: school example is, you know there's a murderer and you're
18:28
Speaker 5: driving the getaway car. You don't have to pull the
18:30
Speaker 5: trigger to be guilty of murder under those circumstances as
18:35
Speaker 5: an accomplice. And in this particular case, at least, the
18:38
Speaker 5: prosecution is a legend that Davis got the gun and
18:42
Speaker 5: they're pretty specific as to who he got it from.
18:44
Speaker 5: He passed it to someone in the backseat only because
18:49
Speaker 5: he was to the right of tupacs car in the
18:51
Speaker 5: front passenger seat. And his story is that had he
18:55
Speaker 5: been on the other side and had a clear shot,
18:57
Speaker 5: he would have taken it himself. So that's pretty damaging
19:00
Speaker 5: for the defense. He passed the firearm to someone in
19:04
Speaker 5: the back who didn't or was unable to take the shot,
19:07
Speaker 5: and the other backseat passenger did so under those circumstances, that's.
19:12
Speaker 4: Murder under the law. If the jurors believed that story.
19:16
Speaker 3: That story, you know, as you're reciting it, does have
19:20
Speaker 3: a lot of details that make it seem credible. I
19:23
Speaker 3: have to say, you know, for a jury, because it's
19:25
Speaker 3: not just I gave someone the gun and they know
19:28
Speaker 3: it's I wasn't on the right side, or I would
19:31
Speaker 3: have shot him and then I came to someone in
19:33
Speaker 3: the front. And also he talks about Tupac actually waving
19:37
Speaker 3: to fans or whatever he said, if they wouldn't have
19:39
Speaker 3: known that he was in the car, if he hadn't
19:41
Speaker 3: done that. So, I mean there are some details.
19:44
Speaker 4: Yeah, it was fastin. I mean, yeah, there are very
19:46
Speaker 4: specific details.
19:47
Speaker 5: And what's sort of fascinating is a Tupac's car was
19:51
Speaker 5: apparently pulled over about ten minutes before he was shot
19:54
Speaker 5: because I got no plates. So I'm obviously an important
19:58
Speaker 5: part of the story. But yeah, like you said, if
20:00
Speaker 5: the story is precise, if it's consistent, if it's corroborated,
20:05
Speaker 5: I think the prosecution can get there.
20:08
Speaker 4: But if it's just a general story.
20:11
Speaker 5: About a hip hop feud, it's gonna be hard to
20:14
Speaker 5: get twelve out of twelve.
20:16
Speaker 3: The straw was thirty years in the making. We'll have
20:18
Speaker 3: to see if it lives up to the expectations that
20:22
Speaker 3: many people have for it.
20:24
Speaker 5: I am just really excited to be covering this one.
20:28
Speaker 4: Hopefully the jury gets it right.
20:29
Speaker 5: But really the fact that there have been no charges
20:32
Speaker 5: in two of these cold cases for decades, it's really
20:37
Speaker 5: a head scratcher and really plays into the perception, right
20:43
Speaker 5: or wrong, that law enforcement is corrupt and that they
20:48
Speaker 5: either don't take these cases seriously at best, or we're
20:52
Speaker 5: complicit somehow at worst. So I'm glad the case is
20:55
Speaker 5: moving forward, excited to see what the coming days and
20:58
Speaker 5: weeks show in terms of the test.
21:00
Speaker 3: It's always great to get your Insightsnema. That's Nima Romani,
21:04
Speaker 3: president and co founder of West Coast Trial Lawyers. A
21:11
Speaker 3: federal judge in Los Angeles signaled she's likely to issue
21:14
Speaker 3: a preliminary injunction ordering ICE to stop making warrantless arrests
21:20
Speaker 3: unless agents first determine that a person is a flight risk.
21:24
Speaker 3: That would force ICE agents to fundamentally change the way
21:27
Speaker 3: they've been conducting the sweeps at the heart of President
21:31
Speaker 3: Trump's massive deportation campaign. Joining me is an expert in
21:36
Speaker 3: immigration law, Leon Fresco, a partner at Hollanda Knight. He
21:40
Speaker 3: was the head of the Justice Department's Office of Immigration
21:43
Speaker 3: Litigation during the Obama administration. Leon, is this the same
21:48
Speaker 3: case that went up to the Supreme Court at one point.
21:51
Speaker 6: So this case, I've had a lot of iteration. So
21:54
Speaker 6: it started in June of twenty twenty five with the
22:00
Speaker 6: word of go to the home depot and start grabbing people.
22:03
Speaker 1: We want to get to three thousand arrests a day.
22:06
Speaker 6: And there was a tro at, a preliminary injunction back
22:09
Speaker 6: then that had to do with racial profiling and said
22:13
Speaker 6: you need to have a warrant in order to arrest
22:17
Speaker 6: people if you were doing these roving ice operations.
22:20
Speaker 1: You couldn't just do that.
22:21
Speaker 6: You had to have a list of people that you
22:23
Speaker 6: knew were in undocumented status and you had to pick
22:26
Speaker 6: them up.
22:27
Speaker 1: And that was for all of Los Angeles County.
22:29
Speaker 6: And what happened was this is where the Kavanaugh stops
22:32
Speaker 6: was created. That ended up going all the way to
22:34
Speaker 6: the Supreme Court. And just as Kavanaugh said, no, no, no,
22:38
Speaker 6: you can have warrantless arrests here because you can see
22:42
Speaker 6: certain things about people that are common toward the fact
22:46
Speaker 6: pattern of being undocumented where they're being apprehended, Are they
22:50
Speaker 6: speaking a different.
22:51
Speaker 1: Language, blah blah blah.
22:53
Speaker 6: And so that ended up being disbanded, and so these
22:57
Speaker 6: folks came back with a new legal thing, and the
23:01
Speaker 6: new legal theory was, well, wait a second, maybe this
23:04
Speaker 6: isn't based on racial profiling. Maybe the problem is that
23:09
Speaker 6: these arrests that are happening are not just warrantless, but
23:13
Speaker 6: they're warrantless, and they're also being done without taking into
23:17
Speaker 6: account whether these individuals are actually flight risks or dangerous.
23:23
Speaker 6: Because the idea was you should only be arresting again
23:27
Speaker 6: people on a list that you know are on document.
23:30
Speaker 6: That you shouldn't be pulling people over on the street
23:33
Speaker 6: and just arresting them unless you thought that the problem
23:36
Speaker 6: was that if you didn't arrest them right at that minute,
23:40
Speaker 6: then you would never be able to find them ever again.
23:43
Speaker 6: And so their view the plaintiffs was that ICE was
23:46
Speaker 6: sort of papering over this work using form language, and
23:51
Speaker 6: they actually said they were using some inappropriate racist language also,
23:56
Speaker 6: and so they had all of these accusations.
23:59
Speaker 3: Leon this tentative ruling. Explain why it's tentative in California.
24:04
Speaker 6: I never knew this until I worked at the Department
24:05
Speaker 6: of Justice because I'm from Florida and I lived in DC.
24:09
Speaker 1: But in California they have this weird thing.
24:10
Speaker 6: Where when you show up to court for an oral argument,
24:12
Speaker 6: they give you the decision before you.
24:15
Speaker 1: Even have the oral argument, which is very odd. And disconcerting.
24:19
Speaker 6: And so that's what that happened here is the judge
24:22
Speaker 6: gave them the preliminary injunction. It's called the tentative ruling,
24:26
Speaker 6: and then you have to argue why the tentative ruling
24:29
Speaker 6: shouldn't go into effect, which I've always found like, well,
24:33
Speaker 6: once the judge spent fifty hours doing work to put
24:36
Speaker 6: in a fifty page order, why would they ever go
24:39
Speaker 6: back on their tentative ruling. I mean, that's cognitive dissonance
24:42
Speaker 6: at its you know, one hundred percent level there. But nevertheless,
24:47
Speaker 6: when I was at the DLJ, was able to argue
24:49
Speaker 6: a case out from under a tentative ruling. But it's very,
24:52
Speaker 6: very hard to do, and most people think this judge
24:55
Speaker 6: will not go away from her tentative ruling and will
24:59
Speaker 6: issue the p liminary injunction.
25:01
Speaker 1: That then says that.
25:03
Speaker 6: You actually have to have individualized language that says this
25:08
Speaker 6: is why this person is a flight risk or dangerous
25:11
Speaker 6: and if you don't do that, then you need a
25:13
Speaker 6: warrant in advance in order to arrest them. And then
25:16
Speaker 6: we're going to have to again work our way up
25:18
Speaker 6: to the Supreme Court to see if that's really the
25:20
Speaker 6: standard here.
25:21
Speaker 3: So for federal judges in Oregon, Colorado, DC, and Sacramento
25:27
Speaker 3: have issued these preliminary injunctions against the warrantless arrest by
25:31
Speaker 3: ICE agency. But has it reached a finappellate court yet.
25:34
Speaker 6: I mean, so it reached the Supreme Court on the
25:37
Speaker 6: issue of racial profiling, but not on the issue of
25:40
Speaker 6: making an individualized determination about flight risk. And so that's
25:45
Speaker 6: where it's going to need to get to an appellate
25:47
Speaker 6: court and then ultimately to the Supreme Court. Most of
25:50
Speaker 6: these are in the Ninth Circuit, So the Ninth Circuit
25:52
Speaker 6: will eventually deal with this one way or the other
25:55
Speaker 6: on the issue of what kind of determination ICE has
25:59
Speaker 6: to make. I find it hard to believe that ICE
26:02
Speaker 6: ultimately will have their hands tied by the Supreme Court
26:05
Speaker 6: to the extent that they're not allowed to make arrests.
26:08
Speaker 6: But we'll have to wait and see it. I just
26:09
Speaker 6: don't see it. I think they will be allowed to
26:11
Speaker 6: make arrest. The way the Supreme Court usually deals with
26:15
Speaker 6: these things is they say, look, if there's an unconstitutional
26:19
Speaker 6: arrest as applied to a specific person, come back to
26:22
Speaker 6: us and argue about that. But we're not in advance
26:26
Speaker 6: going to just tie ICE's hands for no reason. So
26:29
Speaker 6: they love this idea of as applied constitutional challenges and say,
26:33
Speaker 6: come back to us later if they're the problem with
26:36
Speaker 6: the way this is being implemented.
26:38
Speaker 3: Let's turn to another topic. The Justice Department Administrative Panel
26:44
Speaker 3: has ruled that DOCA recipients and others who travel internationally
26:48
Speaker 3: with advanced parole could be disqualified from immigration benefits, including
26:54
Speaker 3: permanent residency. I mean, what normally happens when a DOCA
26:58
Speaker 3: recipient decides to travel internationally.
27:01
Speaker 6: I'll try to keep this as simple as possible, but
27:03
Speaker 6: it's actually a very huge order that affects millions of people.
27:08
Speaker 6: So that's why I thought it was important to talk
27:10
Speaker 6: about it today.
27:10
Speaker 1: Is here's what happens. In nineteen ninety six.
27:14
Speaker 6: As part of something called the Illegal Immigrant Reform and
27:17
Speaker 6: Responsibility Act, it was President Clinton and then the Republican Congress.
27:21
Speaker 1: They came together and they and they agreed on this.
27:24
Speaker 6: They said that illegal immigration had gotten out of control
27:27
Speaker 6: to such an extent that we needed to do something
27:29
Speaker 6: about it, and they created something called the three year
27:32
Speaker 6: ten year Barer. What it says is, if you are
27:35
Speaker 6: in America in an undocumented status, for longer than one
27:38
Speaker 6: hundred and eighty days. If you leave, your ban for
27:42
Speaker 6: three years from coming in, and if you are here
27:45
Speaker 6: for longer than three hundred and sixty five days in
27:48
Speaker 6: undocumented status, then that ban is ten years. So if
27:52
Speaker 6: you leave, you can't come back in for ten years.
27:55
Speaker 6: It's a categorical ban. And so what's the problem. So
27:58
Speaker 6: the problem is this, sometimes people will overstay their visas
28:04
Speaker 6: and eventually meet someone and get married, you know, like
28:08
Speaker 6: in the movie The Proposal with Ryan Reynolds and.
28:14
Speaker 1: Exactly.
28:15
Speaker 6: And so in those situations, people can then apply for
28:19
Speaker 6: green cards or DOCA is another example where the people
28:23
Speaker 6: who had DOCA they didn't have a legal status, now
28:26
Speaker 6: they have one. Now they can apply for a green card. Okay,
28:30
Speaker 6: so what happens next. What happens next is during the
28:34
Speaker 6: year or two years, it takes like between a year
28:37
Speaker 6: or two years that you're waiting for your green card,
28:40
Speaker 6: you are trapped inside of the United States. You're not
28:43
Speaker 6: allowed to travel abroad unless you get permission from the government,
28:47
Speaker 6: and that piece of permission is called advanced parole. If
28:51
Speaker 6: you leave without that permission, you're abandoning your application and
28:54
Speaker 6: they never let you back in. You're totally in big trouble,
28:57
Speaker 6: so you have to have that piece of permission.
29:00
Speaker 1: So the question is, when the government gives you this advanced.
29:03
Speaker 6: Parole permission to travel, did it say to you, oh,
29:09
Speaker 6: we know that if you had left, you would have
29:11
Speaker 6: been subject to the three and ten year bar. But
29:13
Speaker 6: we're saying no, no, no, don't worry about it. You
29:17
Speaker 6: can come back in. And that's what the government did
29:20
Speaker 6: say for the last fifteen years. But what the Trump
29:23
Speaker 6: administration has just done is said no, no, no, no.
29:26
Speaker 6: If you leave the country, even if we gave you
29:29
Speaker 6: one of these permission slips to leave the country, guess what,
29:33
Speaker 6: you're never coming back in. You're subject to that ten
29:35
Speaker 6: year ban and you're never going to be allowed back in.
29:38
Speaker 1: Now.
29:39
Speaker 6: They didn't do it retroactively, which is good. They did
29:41
Speaker 6: it prospectively, so at least they gave people now a warning.
29:45
Speaker 6: But the point is many people would use these paroles
29:50
Speaker 6: in order to be able to actually qualify for a
29:54
Speaker 6: green card. That's what the Knaka people did, because what
29:57
Speaker 6: happens is if you entered illegally into the United States,
30:02
Speaker 6: then you can't get a green card. Not overstay your visa.
30:05
Speaker 6: It doesn't matter who you marry. You could marry Trump,
30:07
Speaker 6: you still can't get a green card. But when you
30:10
Speaker 6: got one of these paroles, that fixed that.
30:13
Speaker 1: But now they're saying no, no, no, no.
30:14
Speaker 6: If you leave, even if you have a parole that
30:17
Speaker 6: you used to think would fix that, it doesn't fix that.
30:20
Speaker 6: So now the immigration lawyers are scrambling telling all of
30:23
Speaker 6: their clients who possess these advanced parole documents that if
30:28
Speaker 6: they're in one of these cases where they're currently in
30:30
Speaker 6: a marriage that they're trying to use to excuse and overstay,
30:36
Speaker 6: don't leave because you're never going to be able to
30:38
Speaker 6: come back in the country. And so a lot of people,
30:41
Speaker 6: at least upfront, are going to get snagged by this
30:44
Speaker 6: during the transition period and it's going to be quite
30:46
Speaker 6: a mess.
30:47
Speaker 3: I have a DACA question. It can all DACA recipients
30:51
Speaker 3: get green cards?
30:53
Speaker 1: Well, so here's what happened. What the DACA does.
30:56
Speaker 3: It easy answer to any of my questions.
30:59
Speaker 6: Yes, Well the answer is maybe at alex play. So
31:02
Speaker 6: here's what happens. What the DOCA does is it gives.
31:06
Speaker 1: You a status.
31:07
Speaker 6: Because a lot of these DOKA kids crossed illegally, so
31:10
Speaker 6: they had no way of getting a green card. But
31:13
Speaker 6: what the DOCA does is it gives you a kind
31:15
Speaker 6: of a quasi status. And at least under the Biden administration,
31:19
Speaker 6: when you had this quasi status, then what would happen
31:24
Speaker 6: was they would give you an advanced parole and so
31:27
Speaker 6: you could travel and come back, and when you came back,
31:30
Speaker 6: that parole fixed the fact that you came illegally the
31:33
Speaker 6: first time. So now you've entered legally, and now you
31:37
Speaker 6: could marry a US citizen and get a green card,
31:39
Speaker 6: or you could get an employment but now that's all gone.
31:42
Speaker 1: They say.
31:43
Speaker 6: Even if the Biden administration gave you such a promision,
31:46
Speaker 6: good luck trying to use it. If you leave and
31:48
Speaker 6: you use it, we're not letting you back in the country.
31:51
Speaker 6: There's potentially fifty thousand people who could be snagged in
31:54
Speaker 6: under this if they're not careful.
31:56
Speaker 3: Something else from the Department of Justice. The Department of
32:00
Speaker 3: Justice has put employers on notice they can face discrimination
32:04
Speaker 3: claims for favoring foreign workers over US workers, even if
32:09
Speaker 3: they're technically complying with Labor Department regulations. So explain what
32:14
Speaker 3: does an employer have to go through if they want
32:17
Speaker 3: to hire a foreign worker.
32:19
Speaker 6: Yeah, there's different processes, but the process that this one
32:23
Speaker 6: is referring to is the process by which you hire
32:26
Speaker 6: a foreign worker for a green card for what's called
32:28
Speaker 6: an employment based green card for lawful permanent residents. The
32:31
Speaker 6: main process there is a process where you have to
32:33
Speaker 6: do recruiting to show that an American worker was not available.
32:38
Speaker 6: The statute itself has things that it says that you
32:43
Speaker 6: have to do. So, for instance, it said you have
32:45
Speaker 6: to put two ads on a Sunday paper and then
32:48
Speaker 6: you have to pick between a radio ad or an
32:51
Speaker 6: internet posting or whatever. It gives you like a menu
32:54
Speaker 6: of ten things, and you have to pick four of them.
32:57
Speaker 1: And so here's the problem.
32:59
Speaker 6: Even though you're technically compliant, when you do a search
33:02
Speaker 6: for a US worker using the four criteria, they give
33:06
Speaker 6: you ten and you can pick any four you on.
33:09
Speaker 6: What the Department of Justice is now saying is yeah,
33:12
Speaker 6: that's fine and dandy, But if you're not using the
33:15
Speaker 6: actual means that you use when you actually want to
33:19
Speaker 6: find a worker, then we're going to say this is
33:22
Speaker 6: a sham process. So not only do you have to
33:24
Speaker 6: use you know, four out of ten things in our menu,
33:28
Speaker 6: but if you do something normally to find workers, you're
33:31
Speaker 6: going to have to do that same normal thing here
33:34
Speaker 6: because this shouldn't be a process about not finding someone.
33:37
Speaker 6: You should be trying to do everything you normally do
33:40
Speaker 6: to find someone, and only if you can't find someone,
33:43
Speaker 6: then do you hire the foreign worker.
33:45
Speaker 3: So there were thirteen settlements reached in the past eighteen
33:49
Speaker 3: months involving this alleged hiring bias, and open AI reached
33:54
Speaker 3: a settlement with the Justice Department of three point two
33:57
Speaker 3: million dollars. Did that number come out of an error
34:00
Speaker 3: or did it relate to the number of violations.
34:03
Speaker 6: Violation per person? But at the end of the day,
34:06
Speaker 6: these settlements are because people don't want to litigate these issues.
34:09
Speaker 6: And so the question is, is some company ultimately going
34:12
Speaker 6: to want to litigate this and say, why can't I
34:15
Speaker 6: use four out of the ten that you told me
34:17
Speaker 6: to use? Why do I have to use the same
34:19
Speaker 6: ones that I use for my other employees If these
34:22
Speaker 6: were the ones you wanted me to use, do that
34:24
Speaker 6: or otherwise say I have to use the same ones
34:27
Speaker 6: that I use for my normal employees. But you know
34:31
Speaker 6: this is the problem.
34:32
Speaker 2: Now.
34:32
Speaker 6: The reason all of this is crazy is because what
34:35
Speaker 6: happened is these foreign workers are already in the company.
34:39
Speaker 6: They're usually working on a temporary visa on an H
34:42
Speaker 6: one B, and what you're trying to do is you're
34:44
Speaker 6: trying to reward them for good work by applying for
34:48
Speaker 6: their green card. The employers want to do the right
34:50
Speaker 6: thing and give that employee a green card, but in
34:53
Speaker 6: order to do that, they have to show there's not
34:54
Speaker 6: an American to get that job. So technically, from the
34:58
Speaker 6: employer's standpoint, the way they're incentivized to do this is
35:03
Speaker 6: to try to not find an American worker so that
35:06
Speaker 6: they can give this employee a Green card. And so
35:08
Speaker 6: the incentive structure is horrible. It's a terrible situation. And
35:12
Speaker 6: so this is one of the key areas where immigration
35:15
Speaker 6: reform is needed, so that at the end of the day,
35:17
Speaker 6: the people who get green cards are people with skills.
35:21
Speaker 1: And talents and abilities that.
35:23
Speaker 6: Are important to the marketplace, not this system where you
35:27
Speaker 6: have this perverse incentive where the only way someone can
35:30
Speaker 6: get a green card is for an employer to have
35:33
Speaker 6: to go through a kabuki theater of trying to show
35:36
Speaker 6: there's not an.
35:36
Speaker 1: American worker there.
35:38
Speaker 6: That system has sort of had its day, and we
35:41
Speaker 6: really do need to move to a new system.
35:43
Speaker 3: Though I think the term kabuki theater would apply to
35:46
Speaker 3: many of the immigration cases we've discussed. Leon, thanks for
35:50
Speaker 3: joining me. As always, that's Leon Fresco of Hollanden Night,
35:54
Speaker 3: and that's it for this edition of The Bloomberg Law Show.
35:56
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36:03
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36:11
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36:15
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