Latest / Bloomberg Law / Landmark 'Shaken Baby Syndrome' Ruling

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Landmark 'Shaken Baby Syndrome' Ruling · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
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Speaker 2: It's a landmark ruling. Today New Jersey became the first
0:13
Speaker 2: state where prosecutors can't build murder cases on medical diagnoses
0:18
Speaker 2: that the mere shaking of a baby caused a child's
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Speaker 2: death unless there's further evidence of trauma. The New Jersey
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Speaker 2: Supreme Court is the first in the country to block
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Speaker 2: a shaken baby syndrome theory when investigations into child deaths
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Speaker 2: don't show other injuries such as bruising or neck damage.
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Speaker 2: Joining me is Bloomberg Law Senior correspondent Alex Ebert. Alex
0:44
Speaker 2: tell us about today's decision.
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Speaker 1: This decision is the landmark opinion issued by the New
0:50
Speaker 1: Jersey Supreme Court that, for the first time for a
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Speaker 1: high court in the country, it says that you cannot
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Speaker 1: bring a shaken baby determination from a medical perspective to
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Speaker 1: charge someone with child assault, where if there's no external
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Speaker 1: evidence of abuse such as bruising or injuries on a
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Speaker 1: child's neck, you can't bring the charges at all. And
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Speaker 1: the reason why that is is because there's big conflict
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Speaker 1: in medical circles about whether or not these reliable symptoms
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Speaker 1: that we thought for years were evidence of shaking baby syndrome.
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Speaker 1: Child abuse could be caused by other means, and there's
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Speaker 1: been new studies that show that perhaps these triad of
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Speaker 1: symptoms such as brain bleeding or bruising on the eyes
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Speaker 1: isn't actually enough to bring that evidence to court. The
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Speaker 1: reason this is a huge landmark ruling is because we've
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Speaker 1: seen bubbling up across the country different medical groups, biomechanical groups,
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Speaker 1: and defense organizations saying we can no longer ignore the
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Speaker 1: conflict and evidence between what we thought was reliable in
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Speaker 1: terms of child abuse and what is now questionable.
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Speaker 2: And this decision involves the cases of two fathers who
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Speaker 2: were facing allegations of child abuse.
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Speaker 1: Yeah, the court was considering the cases of two fathers
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Speaker 1: who both had premature children and were taking care of them,
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Speaker 1: and they had seizure symptoms. These dads brought their kids
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Speaker 1: to the hospital to get them looked after, and doctors determined,
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Speaker 1: even though there were no external symptoms of abuse such
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Speaker 1: as bruising, that these fathers were responsible for injuring their
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Speaker 1: own children by shaking them or slamming them, and the
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Speaker 1: State Public Defender's office ran to the judge and said Listen,
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Speaker 1: we have these cases all across the country that are
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Speaker 1: questioning whether or not you can bring this sort of
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Speaker 1: determination from an expert in court.
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Speaker 2: In this one hundred and nine page ruling, did the
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Speaker 2: court track the scientific evidence?
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Speaker 1: Yeah, the court went deep. So the majority of and
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Speaker 1: Jersey's Supreme Court went through study after study going back
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Speaker 1: to the nineteen sixties looking at how this diagnosis shaking
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Speaker 1: baby syndrome originated. It went back to whiplash studies and
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Speaker 1: cars using monkeys to determine exactly what happens to human
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Speaker 1: beings when they're shaken, and it progressed through different studies
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Speaker 1: by pediatricians and neurosurgeons up through the nineties, when a
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Speaker 1: large medical association for the United States said, it's a
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Speaker 1: presumption that if you have these symptoms that there's child abuse.
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Speaker 2: And where do the medical association stand now?
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Speaker 1: The medical association stand behind a diagnosis, which is what
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Speaker 1: makes this complex. See, you have the industry saying we
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Speaker 1: need to be able to diagnose these children and make
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Speaker 1: sure that we can take them out of bad situations.
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Speaker 1: But you now have a state supreme court saying just
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Speaker 1: because you have this diagnosis isn't enough to rule out
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Speaker 1: anything else, and that's not enough to come to court
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Speaker 1: and say, based on my medical opinion, this is the
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Speaker 1: only thing that could have happened.
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Speaker 2: There are seven members of the New Jersey Supreme Court,
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Speaker 2: and this was a six to one decision.
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Speaker 1: One of the justices issued a dissent here, siding with
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Speaker 1: the medical organization, saying, listen, we can't be second guessing
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Speaker 1: the medical establishment here. We are not scientists. We are
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Speaker 1: not people that investigate the scientific method. And she focused
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Speaker 1: mostly on the medical associations that all backed up this diagnosis.
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Speaker 1: Were the majority focused on biomechanical experts, who said, we
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Speaker 1: originated a lot of the science behind how you determine
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Speaker 1: whiplash and things like that, and if you don't have
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Speaker 1: our consensus for this, then the consensus of the medical
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Speaker 1: industry doesn't necessarily hold water.
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Speaker 2: Can this decision be appealed?
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Speaker 1: It wouldn't be difficult to appeal this decision. It would
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Speaker 1: have to go to the United States Supreme Court, because
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Speaker 1: that is the only direct appeal from a Supreme court.
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Speaker 1: There has not been a ruling on this to my knowledge,
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Speaker 1: although there is some quotation of a Ginsburg descent inside
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Speaker 1: of the ruling today, this is now going to go
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Speaker 1: back to the trial court and these charges will be
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Speaker 1: dismissed against these parents.
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Speaker 2: Is New Jersey different from other courts in the way
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Speaker 2: it's been handling these cases.
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Speaker 1: Up to this point, there has never been a decision
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Speaker 1: that goes this far. Though, you have courts start to
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Speaker 1: become extremely skeptical of this no external evidence shaken baby
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Speaker 1: syndrome theory. You've had, especially the Michigan Supreme Court issued
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Speaker 1: decision saying, hey, we need to provide counsel that does
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Speaker 1: a good job of contesting the state's evidence here at
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Speaker 1: a deep level. And you've also seen criminal courts in
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Speaker 1: Texas and the Texas legislature really question whether or not
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Speaker 1: a death row inmate there should be in prison.
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Speaker 2: So, up until this point, how would prosecutors can instruct
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Speaker 2: a case against someone based on shaken baby syndrome? They
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Speaker 2: needed some physical evidence.
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Speaker 3: Right do so?
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Speaker 1: Doctors create this differential diagnosis by looking at, you know,
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Speaker 1: different markers on the child when they come in to
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Speaker 1: get treatment. You look at things like bleeding on the
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Speaker 1: brain or bleeding in the eyes and say, Okay, something
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Speaker 1: happened to this child. It's more than just seizures, right
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Speaker 1: or they look back at the child's past and say,
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Speaker 1: did you have any accidental injury? You know, did billy
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Speaker 1: you know, fall down the stairs? And in cases where
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Speaker 1: that's not present, they you know, think, okay, we're ruling
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Speaker 1: out other things. It must be something else. But the
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Speaker 1: problem there is the justices in New Jersey say that's
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Speaker 1: not enough to come to court and say we've ruled
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Speaker 1: out everything else. It can only be this.
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Speaker 2: So you need something else, something that physically shows that's right.
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Speaker 1: You need something else. They call it external evidence, but
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Speaker 1: it's some sort of physical external issues with the body, right,
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Speaker 1: damage to someone's neck or bruising, you know, other signs
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Speaker 1: of abuse. And the descent here calls out that this
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Speaker 1: means that there could be parents or childcare providers or
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Speaker 1: other people that get away with abusing children because there's
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Speaker 1: just no external evidence of it. But on the other side,
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Speaker 1: you have decades of people saying we're putting away parents
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Speaker 1: and usually fathers on perhaps flimsy evidence, just because a
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Speaker 1: doctor couldn't find a reason for it.
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Speaker 2: Are there a lot of shaken baby cases in this country?
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Speaker 1: I'm unaware of reading through the briefs how many there are.
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Speaker 1: But we're looking at hundreds. There were several going on
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Speaker 1: at the time when this decision was coming up in
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Speaker 1: New Jersey alone.
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Speaker 2: So this is, you know, a forward thinking decision. Cutting
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Speaker 2: edge is the New Jersey Supreme Court known for that.
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Speaker 1: New Jersey Supreme Court is known for this sort of thing.
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Speaker 1: It has extremely robust protections when it comes to privacy,
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Speaker 1: and it's usually at the cutting edge of Fourth Amendment jurisprudence.
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Speaker 1: We've talked in the past about how skeptical they are around,
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Speaker 1: you know, looking at things like someone's Google accounts and
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Speaker 1: other subpoena information. But this falls in line with the
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Speaker 1: court's skepticism towards allowing police and prosecutors to introduce evidence
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Speaker 1: without it being questioned. Here you sort of see the
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Speaker 1: justices line up in a way that we haven't in
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Speaker 1: another court to say, in this instant where someone is
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Speaker 1: saying it can only be this, we can't allow that
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Speaker 1: sort of thing when there's not enough certainty in the field.
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Speaker 1: We've seen decisions bubble up that look at client accountability
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Speaker 1: for lawyers in this regard, right, but we haven't seen
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Speaker 1: a court go this far. It'll be really interesting to
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Speaker 1: see if other courts go as far as New Jersey
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Speaker 1: and strip this tool away from prosecutors to tackle child abuse.
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Speaker 1: You know, especially in our current climate where child abuse
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Speaker 1: and the abusive minors is a huge problem and concern.
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Speaker 1: You know, potentially taking away that tool might be more
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Speaker 1: politically sensitive in some parts of the country than others.
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Speaker 2: Tough balancing decisions, no doubt, Thanks so much, Alex. That's
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Speaker 2: Bloomberg Law Senior correspondent Alex Ebert. A handful of Fifth
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Speaker 2: Circuit judges are mellowing out some rulings from one of
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Speaker 2: the most conservative federal appellate courts, and they're the senior
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Speaker 2: judges Bloomberg Laws. Jacqueline Thompson has done some research on
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Speaker 2: this right, so start by telling us about these decisions
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Speaker 2: from the three judge panels that are a little more moderate,
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Speaker 2: less conservative than the full court's decisions usually are.
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Speaker 4: I mean, when we think about the US Court of
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Speaker 4: Appeals for the Fifth Circuit, you know, we immediately think
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Speaker 4: of a conservative appeals court, and you know, a lot
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Speaker 4: of their rulings are very conservative. But there have been
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Speaker 4: a few decisions lately that don't necessarily fit in with
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Speaker 4: that pattern. For example, there was a three judge panel
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Speaker 4: that said a Louisiana law that mandated the display of
10:17
Speaker 4: the Ten Commandments in public schools was unconstitutional. There was
10:21
Speaker 4: another one saying that the Texas A and M president
10:24
Speaker 4: at the time was wrong in canceling a student drag
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Speaker 4: show on campus. And you know, those are rulings that
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Speaker 4: we think of as not going in the conservative pattern
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Speaker 4: that we think of when we think of the Fifth Circuit. So,
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Speaker 4: you know, I started to take a step back and
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Speaker 4: look at who was actually on those panels. And for
10:44
Speaker 4: a lot of the Fifth Circuit argument panels, often it
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Speaker 4: is a Trump appointe or more conservative member, a more
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Speaker 4: moderate member of the court, and then a senior judge.
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Speaker 4: And that's not always the case. Sometimes there will be
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Speaker 4: multiple Trump appointees. Sometimes there are panels with ultraum appointees.
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Speaker 4: Sometimes it's called George W. Bush appointees. But you know,
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Speaker 4: for these instances, that seemed to be the composition either
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Speaker 4: Trump or Reagan appointee dissenting against a majority of the
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Speaker 4: panel that was a moderate judge or a senior judge.
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Speaker 4: And so I said, okay, well, what's the role that
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Speaker 4: the senior judges are playing here? And you know, it
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Speaker 4: just seemed to have more of an outsize impact than
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Speaker 4: I expected.
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Speaker 2: Tell us about the composition of the Fifth Circuit itself.
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Speaker 4: Yeah, so I believe there are seventeen active judges right now,
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Speaker 4: and there are on top of that seven senior judges
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Speaker 4: who are still here in cases. One other senior judge
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Speaker 4: actually went fully inactive earlier this year, so that left
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Speaker 4: just to seven. We have six Trump appointees on that court.
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Speaker 4: We have two Biden appointees, we have I believe two
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Speaker 4: Obama appointees, a couple of Clinton appointees, and then about.
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Speaker 1: Three or four George W.
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Speaker 4: Bush appointees acting as active judges. For the most part,
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Speaker 4: one is the senior judge. We have two Reagan appointees
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Speaker 4: who are active judges, and then we have other Reagan
12:10
Speaker 4: appointees who are senior judges. One senior judge who has
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Speaker 4: been incredibly active is Carolyn dining King. She is a
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Speaker 4: Carter appointee. So you know, it really goes the whole
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Speaker 4: spectrum of presidents who have appointed judges to the Fifth
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Speaker 4: Circuit who are still here in cases and who are
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Speaker 4: still playing a really active role on this court. I
12:34
Speaker 4: mean the Reagan judges are very active. I mean two
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Speaker 4: of them aren't taking senior status, which would give Trump
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Speaker 4: the opportunity to fill two seats on that court and
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Speaker 4: sort of expand his wing. But you know, they're often
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Speaker 4: in line with the Trump appointees on the court. So
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Speaker 4: I can't speak to why they're not taking senior status,
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Speaker 4: but that may be part of it that you know,
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Speaker 4: they're like, hey, look, I'm super relevant right now. I'm
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Speaker 4: able to build up these majorities with other factions at
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Speaker 4: the court right now.
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Speaker 2: So will you explain in general, because there are exceptions,
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Speaker 2: as you note in your article, are the senior judges
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Speaker 2: more moderate than the recent appointees, particularly the Trump appointees.
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Speaker 4: I think that's right. I think there are more moderate.
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Speaker 4: They're more of an old school conservative. You know, if
13:21
Speaker 4: you sort of want to put the Republican appointed judges
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Speaker 4: in two factions, you might have, you know, the active
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Speaker 4: Reagan appointees and the current Trump appointees and one basket,
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Speaker 4: and then senior judges who are also Republican appointees and
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Speaker 4: folks who are like George W. Bush appointees and another basket.
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Speaker 4: Sometimes there's some crossover there, especially on the fringes. There's
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Speaker 4: one Triump appointee who might be more in line with
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Speaker 4: the moderate wing, and then one Bush appointing, you might
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Speaker 4: be more in line with the Trump wing. But you know,
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Speaker 4: for the most part, the senior judges they've been around
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Speaker 4: for a while, They've been appointed by presidents of a
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Speaker 4: different generation, and they've spent decades sitting on this court.
14:02
Speaker 4: And you know, because of that, they may have more
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Speaker 4: experience and make them less willing to question settle precedent
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Speaker 4: or to think, hey, maybe we should look at this
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Speaker 4: a different way than we happen in the past.
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Speaker 2: And the Fifth Circuit has been sort of trying to
14:18
Speaker 2: test the envelope or move the case law to the
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Speaker 2: to the right in many circumstances, and they've been getting
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Speaker 2: reviewed by the Supreme Court a lot more than other circuits.
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Speaker 4: You're right that the Fifth Circuit does have an outsized
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Speaker 4: number of cases that are going to the US Supreme
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Speaker 4: Court and that are regularly being considered by the justices.
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Speaker 4: Some of that might be because these judges are writing
14:45
Speaker 4: dissents or concurring opinions that sort of say, hey, take
14:49
Speaker 4: a look at this case. I mean Dobbs, which over
14:52
Speaker 4: turn Row that was a Fifth Circuit case. Jim Howick
14:55
Speaker 4: Trump appointing wrote the opinion in that that sort of
14:58
Speaker 4: laid the groundwork for the un Supreme Court to take
15:01
Speaker 4: up that case. And you know, we see that in
15:03
Speaker 4: other instances too. Judge Patrick Higginbotham, who was a Reagan appointee,
15:07
Speaker 4: he's a senior judge. He had written an opinion in
15:11
Speaker 4: a case involving porn Hub and Texas law and age
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Speaker 4: verification requirements for you know, explicit adult websites that you know,
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Speaker 4: some people say was sort of a way for the
15:22
Speaker 4: Supreme Court to take up that case because he said, hey,
15:25
Speaker 4: this is you know, what the precedent is on the books,
15:28
Speaker 4: and that allowed the justices to pick it up and
15:31
Speaker 4: then you know, alter or trust that old precedent and
15:34
Speaker 4: say this is how it should be applied moving forward
15:37
Speaker 4: and upholding that Texas law.
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Speaker 2: Are the Democratic appointees on that court, usually in dissent
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Speaker 2: or not.
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Speaker 4: They can be in descent. Sometimes they line up with
15:48
Speaker 4: the moderate judges. We see folks who are George W.
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Speaker 4: Bush appointees like Leslie Southwick or Katerina Haynes. They will
15:56
Speaker 4: sometimes be lined up with the Democratic appointees who are
15:59
Speaker 4: folks like Steve Higginson. Judge Graves comes to mind, Carl Stewart.
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Speaker 4: You know, Diana Douglas and Irma Ramirez are the two
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Speaker 4: new Biden appointees, you know, so they're all in the
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Speaker 4: mix as well. And we do find that folks like Haynes,
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Speaker 4: like Southwick are more willing to reach agreement with their
16:18
Speaker 4: liberal colleagues, and maybe other members of the court are.
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Speaker 2: And you mentioned a Clinton appointee who does a lot
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Speaker 2: of dissents.
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Speaker 4: Yes, James Dennis. He is a senior member of the Court.
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Speaker 4: He only went senior a few years ago, and you know,
16:34
Speaker 4: he's been on the court for decades once again, and
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Speaker 4: right now he's sort of viewed as one of the
16:39
Speaker 4: big dissenters on the court. And you know, one lawyer
16:42
Speaker 4: I spoke to who regularly looks at Fifth Circuit opinion
16:45
Speaker 4: says that seems to be a role that Judge Dennis
16:48
Speaker 4: sort of relishes because you know, it helps develop the law.
16:51
Speaker 4: You know, even if your dissent isn't the controlling opinion,
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Speaker 4: maybe it raises the issue to the Supreme Court, maybe
16:58
Speaker 4: it flags it to another circuit as they're considering a case.
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Speaker 4: You know, it's still a way to be vocal. Even
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Speaker 4: if your point of view isn't the winning one.
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Speaker 2: Now, the case is that you mentioned in the beginning
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Speaker 2: are headed to the on bank panel, so they could
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Speaker 2: be reversed.
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Speaker 4: Yes, So when the Fifth Circuit takes up a case
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Speaker 4: en banc, they actually vacate the lower panel opinion, So
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Speaker 4: all those rulings have actually already been tossed out by
17:24
Speaker 4: virtue of the cases being reheard. So whatever the en
17:28
Speaker 4: banc Court decides will be the holding opinion for all
17:31
Speaker 4: of those cases. And you know, it's interesting. The Fifth
17:34
Speaker 4: Circuit has a rule that if a senior judge was
17:37
Speaker 4: on the panel that heard the case in the first place,
17:40
Speaker 4: then they can sit on the en banc court alongside
17:42
Speaker 4: all the active judges, which are typically the members of
17:46
Speaker 4: that full panel. So it sort of changes the composition
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Speaker 4: a little bit because you might think, oh, I have
17:53
Speaker 4: you know, eight stalwart conservatives and they're going up against
17:59
Speaker 4: you know, six to eight other moderates or liberals, and
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Speaker 4: you know, I'm gonna have to focus on this judge
18:05
Speaker 4: or that judge just sort of win them over. But
18:07
Speaker 4: if you have a senior judge, then maybe that moderate
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Speaker 4: pool expands a little bit more than you thought it would.
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Speaker 4: And that sort of changes the calculus for lawyers who
18:16
Speaker 4: are arguing before the full Fifth Circuit.
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Speaker 2: To what do you attribute the spike in on bank cases.
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Speaker 4: You know that a lot of them are hot button issues.
18:25
Speaker 4: I mean we're talking about is some of the really
18:29
Speaker 4: social you know, quote unquote culture war topics that are
18:33
Speaker 4: coming up right now. You know, the Fifth Circuit during
18:35
Speaker 4: the Biden administration was a hotbed of litigation. They've sort
18:39
Speaker 4: of lost that since so many cases are now going
18:42
Speaker 4: to the First Circuit or the Fourth or the DC Circuit.
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Speaker 4: You know, this is an opportunity for them to weigh
18:48
Speaker 4: in on these really important topics. You know, maybe as
18:52
Speaker 4: fewer of those cases that are going through that circuit.
18:55
Speaker 4: I don't know this for a fact, but maybe there's
18:56
Speaker 4: more of an appetite for taking on those sorts of
18:59
Speaker 4: cases and be able to weigh in on those sorts
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Speaker 4: of topics. And I mean some of these judges are
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Speaker 4: very vocal, so they're not scared to weigh in on
19:08
Speaker 4: these issues either. But you know, especially if there's an
19:12
Speaker 4: old precedent on the court that they want to change,
19:15
Speaker 4: this is the opportunity for folks like the Trump appointees
19:18
Speaker 4: to do that. You know, if that's happening in the
19:20
Speaker 4: First Amendment space, and like in the Ten Commandments case,
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Speaker 4: you know, that's something that they'll be able to you know,
19:27
Speaker 4: shape moving forward. And then you know, if it goes
19:30
Speaker 4: up to the Supreme Court and they adopt that philosophy,
19:32
Speaker 4: well then that's national precedent that they were able to
19:35
Speaker 4: have a role in playing and making sure that plays
19:38
Speaker 4: out that way.
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Speaker 2: You quoted from Senior Judge Edith Brown Clement in twenty
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Speaker 2: nineteen saying that Mississippi simply had the poor luck of
19:47
Speaker 2: drawing a majority minority panel in seeking a stay in
19:51
Speaker 2: a voting rights case. Is it stated or unstated that
19:55
Speaker 2: there is this political element where the Democratic appointees are
19:59
Speaker 2: more liber role and the Republican appointees are more conservative generally, you.
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Speaker 4: Know, I think judges are sort of reluctant to put
20:07
Speaker 4: a label on like that, and I think some practicing
20:10
Speaker 4: lawyers for the Court are at least publicly reluctant to
20:15
Speaker 4: do that sort of thing as well. So, you know,
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Speaker 4: I think folks like Edith Brownkleman have no issue in
20:21
Speaker 4: putting that forward. I can't say that would apply to
20:24
Speaker 4: the rest of her colleagues.
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Speaker 2: Well, it would be nice if you couldn't identify politics
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Speaker 2: in some of these decisions. Thanks so much, Jacqueline. That's
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Speaker 2: Jacqueline Thompson of Bloomberg Law. The Supreme Court has made
20:39
Speaker 2: it tougher on agencies with a decision that created a
20:43
Speaker 2: new legal test to determine when regulators have to bring
20:47
Speaker 2: cases in court rather than before in house judges. So far,
20:52
Speaker 2: agencies are winning the battle, with federal courts siding with
20:56
Speaker 2: them in thirty four out of thirty eight rulings. Joining
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Speaker 2: me is constitutional law expert Harold Krant, a professor at
21:03
Speaker 2: to Chicago Kent College of Law. How start by explaining
21:08
Speaker 2: the Supreme Court limiting agencies and it's ruling in the
21:13
Speaker 2: Jercracy case.
21:14
Speaker 5: So, one of the ways that the Supreme Court has
21:16
Speaker 5: cut back on the power of administrative agencies is by
21:20
Speaker 5: directing or at least allowing companies to say that they
21:25
Speaker 5: belong in court, not before the agencies. And the Court's
21:29
Speaker 5: done this in an unusual way by cutting back on
21:32
Speaker 5: something that used to be called the public rights doctrine,
21:35
Speaker 5: which said that if the government's involved, it need not
21:37
Speaker 5: go to court. It can instead proceed with a fine
21:40
Speaker 5: or a disbarment or a license prevocation before an administrative
21:46
Speaker 5: agency and have the issue decided first there with appeal
21:51
Speaker 5: to the court thereafter. It's cheaper to go before the agency,
21:55
Speaker 5: it's more efficient. And yet the Court has said that
21:58
Speaker 5: that's now intention with its new understanding of the Seventh Amendment.
22:03
Speaker 5: And so the Court directed in the Supreme Court decision
22:06
Speaker 5: called Jarcracy, that no longer can the government rely.
22:11
Speaker 3: Upon these in house agency.
22:13
Speaker 5: In Ministry of Tribunals if and this is where it
22:17
Speaker 5: gets tricky, if the action before the Ministry of Tribunal
22:22
Speaker 5: resembles a common law action that was available at our
22:28
Speaker 5: Nations founding over two hundred years ago. So it's a
22:31
Speaker 5: complicated historical based test. And then the courts have to
22:36
Speaker 5: pick and choose and decide, well, is this a fraud
22:40
Speaker 5: claim that looks like something of common law? Is this
22:43
Speaker 5: a fine for a privacy violation which may not have
22:47
Speaker 5: existed in common law? And so it's going to take
22:50
Speaker 5: a while for the lower courts to sort through this,
22:53
Speaker 5: to decide what kinds of government penalties can be heard
22:59
Speaker 5: before in the Ministry of Tribunal and what kind must
23:03
Speaker 5: go before a court and because the Seventh Amendment attaches,
23:07
Speaker 5: that's slower, it's more ponderous, And so there's a lot
23:10
Speaker 5: of important stakes involved here.
23:14
Speaker 2: So now, a Bloomberg review found that by a wide margin,
23:18
Speaker 2: companies lost most of their initial attempts to stop agency
23:23
Speaker 2: in house judges from hearing a wide range of disputes.
23:26
Speaker 2: Federal courts sided against the challengers against the companies in
23:31
Speaker 2: thirty four of thirty eight rulings. Agencies also prevailed in
23:36
Speaker 2: seven of nine Appeals court rulings. Why are these cases
23:40
Speaker 2: leading to these results? Are judges reluctant to pull the triggers,
23:44
Speaker 2: so to speak?
23:46
Speaker 5: I think there's so many holes in the Supreme Court's
23:48
Speaker 5: decision that the low court judges simply don't have a
23:51
Speaker 5: good playbook by which to decide whether or not the
23:55
Speaker 5: Seventh Amendment would attach. I'm going to give you a
23:58
Speaker 5: couple of examples.
24:00
Speaker 3: Cases involved the.
24:01
Speaker 6: Federal Communications Commission, which has issued huge fines against Verizon
24:08
Speaker 6: and against AT and T for compromising customer location data.
24:13
Speaker 3: And these are millions of dollars of fonts, and.
24:15
Speaker 5: So the court has to decide, well, is this a
24:19
Speaker 5: we Obviously there was no customer location information available at
24:23
Speaker 5: the time of the founding. On the other hand, people
24:27
Speaker 5: not taking care of other people's sort of property was
24:31
Speaker 5: well known the time of the framing, and.
24:34
Speaker 3: So what do you do.
24:36
Speaker 5: And two courts have held that the fines are okay,
24:39
Speaker 5: and one court is held that the fine is not okay,
24:42
Speaker 5: and so this case may end up going to the
24:45
Speaker 5: Supreme Court for clarification. Another case that where there's a
24:49
Speaker 5: split was an interesting case. We had to do with
24:52
Speaker 5: the Department of Labor trying to protect immigrant workers or
24:56
Speaker 5: visas making sure that their place of employment was healthy
25:01
Speaker 5: in terms of where they lived, in terms.
25:03
Speaker 3: Of bathroom breaks, in terms of food breaks, et cetera.
25:06
Speaker 5: And both cases were fines, and one court held that, well,
25:10
Speaker 5: this is just typical sort of finding a company for
25:15
Speaker 5: violation of the conditions of employment. This looks like a
25:18
Speaker 5: common law action. And the other court says, no, this
25:22
Speaker 5: is unique. This is immigration. This is more tied to
25:25
Speaker 5: the public rights. And therefore we're not going to say
25:29
Speaker 5: that there needs to be a Seventh Amendment for the
25:32
Speaker 5: employer here. So it's going to take a while for
25:35
Speaker 5: these cases to sift. The Supreme Court is going to
25:38
Speaker 5: have to get back into the fray because it is
25:40
Speaker 5: such a surprising decision. It reversed so many generations of
25:46
Speaker 5: cases and without many guidelines, and so the Court's going
25:50
Speaker 5: to have to get back into the fray.
25:52
Speaker 2: I mean, does this point out how cumbersome and at
25:57
Speaker 2: times inexplicable the test is to go back in history
26:02
Speaker 2: and see what the law was at the founding.
26:06
Speaker 5: I mean, most people don't think the Supreme Court's test
26:09
Speaker 5: makes much sense.
26:10
Speaker 3: Now, the Seventh Amendment.
26:11
Speaker 5: Does have a kernel to it that the Court has followed,
26:15
Speaker 5: which says that to determine whether normally a case should
26:19
Speaker 5: go before a jury trial does depend upon whether or
26:23
Speaker 5: not the cause of action resembles something that existed at
26:26
Speaker 5: the time the Seventh Amendment was ratified. So at least
26:30
Speaker 5: we have that test, and we've looked at it. But
26:32
Speaker 5: the difficulty here is that these common law causes of
26:35
Speaker 5: action now are brought by the government in terms of
26:38
Speaker 5: fines and other penalties, so they're not like timon law
26:43
Speaker 5: causes of action directly, and if there is a the
26:47
Speaker 5: government involved, we've long thought that the Seventh Amendment doesn't apply,
26:52
Speaker 5: and so the Court, by changing the rules of the game,
26:56
Speaker 5: has so confusion and it's going to take more cases
27:00
Speaker 5: for lower courts to understand what is the ambit of
27:03
Speaker 5: when these companies do deserve a jury trial before their
27:08
Speaker 5: claim bines can be adjudicated.
27:10
Speaker 2: And some agencies can't bring cases in court.
27:15
Speaker 5: Most agencies do have the power. It's just a matter
27:17
Speaker 5: of the time and expense. Jury trials take long time,
27:21
Speaker 5: they're far more expensive, and plus it would have a
27:24
Speaker 5: negative impact on the courts. The courts are not exactly
27:26
Speaker 5: the static about having an increase in workload to hear.
27:32
Speaker 3: These fines and other kinds of cases.
27:35
Speaker 5: So it's going to back up the workload in the
27:38
Speaker 5: courts as well.
27:40
Speaker 2: And let's turn for a moment to the indictment of
27:44
Speaker 2: former FBI director James Comey. In an opinion a magistrate
27:48
Speaker 2: judge has already outlined eleven potential mistakes by the prosecution
27:56
Speaker 2: in that case, the prosecutor being newly a pointed prosecutor,
28:01
Speaker 2: Lindsay Halligan, the interim us Attorney for the Eastern District
28:07
Speaker 2: of Virginia, who had no prosecutorial experience at all when
28:12
Speaker 2: she went before the grand jury to get Comy indicted,
28:15
Speaker 2: and in court yesterday she acknowledged that the full grand
28:20
Speaker 2: jury never reviewed the indictment that was actually filed against Comy.
28:28
Speaker 5: So there was at the minimum of a clerical error
28:33
Speaker 5: that could be turned into such as procedural error that
28:38
Speaker 5: the entire case could be compromised because the grand jury
28:41
Speaker 5: actually voted on an.
28:43
Speaker 3: Indictment that it didn't see.
28:45
Speaker 5: Evidently, Lindsay Halligan cleaned up the first indictment because the
28:50
Speaker 5: grand jury rejected one of the claims that she had
28:53
Speaker 5: brought and so changed the indictment and only showed it
28:56
Speaker 5: to the four person as opposed to the members of
29:00
Speaker 5: grand jury themselves. So they actually when they voted on
29:03
Speaker 5: an indictment, they did not see the actual legally perfect
29:07
Speaker 5: indictment that was at stake there. So we have a
29:10
Speaker 5: mismatch between what the grand jury voted on and what
29:14
Speaker 5: the indictment that is moving forward now. That may seem
29:17
Speaker 5: to listeners like a sort of a silly little mistake,
29:20
Speaker 5: because the grand jury knew what was in the indictment,
29:24
Speaker 5: and it is this pales I think before in terms
29:27
Speaker 5: of a mistake in comparison to the other mistakes that
29:30
Speaker 5: the magistrate uncovered just earlier in this week.
29:33
Speaker 3: But nonetheless it's a legal error.
29:36
Speaker 5: And it's an error that may doom the indictment, and
29:38
Speaker 5: so she'd have to go back and seek another one,
29:41
Speaker 5: because under federal law there is a six month gap
29:46
Speaker 5: where you are allowed to seek an indictment if one
29:49
Speaker 5: is one unravels, and so that may be what happens.
29:53
Speaker 5: But there's other penalties that the judge may impose for
29:57
Speaker 5: the other mistakes, such as obviously if it if the
30:00
Speaker 5: judge finds that it's a vindictive prosecution, then the entire
30:04
Speaker 5: prosecution goes away and the dictment cannot be refined.
30:07
Speaker 2: One of the major errors she made was basically to
30:11
Speaker 2: say that Comy doesn't have a Fifth Amendment right not
30:16
Speaker 2: to testify, and that you know, the jurors could hold
30:19
Speaker 2: that against him, that he didn't testify at the grand jury.
30:23
Speaker 2: I mean, that's that's a huge mistake, isn't it.
30:27
Speaker 3: Oh, it's a huge mistake.
30:28
Speaker 5: And then to also say that the grand jury could
30:31
Speaker 5: consider that the government will bring additional evidence at trial
30:35
Speaker 5: again makes a mockery of the whole grand jury system,
30:38
Speaker 5: because the grand jury, as a tech book matter, has
30:41
Speaker 5: to decide whether or not there's enough information presented to
30:45
Speaker 5: them to establish probable cause, and so you know in
30:49
Speaker 5: that sense, mistake after a mistake, and as I think
30:53
Speaker 5: that the court may say that as a penalty for
30:57
Speaker 5: all these mistakes and for the vindictive prosecution, that no indictment,
31:02
Speaker 5: further indictment can even be pursued.
31:05
Speaker 3: That's a possibility. It's a strong possibility.
31:07
Speaker 5: Not for sure, but I feel pretty comfortable this indictment
31:10
Speaker 5: is going to be doomed.
31:11
Speaker 2: Hell, everyone says statute of limitations, But you think that
31:15
Speaker 2: the law that allows a prosecutor to cure an indictment
31:20
Speaker 2: within six months, you think that that would nullify the
31:24
Speaker 2: satu of limitations problems.
31:26
Speaker 3: Yeah, it would.
31:27
Speaker 5: If the court decides that this is a technical violation,
31:32
Speaker 5: and if it's a mere technical violation like showing the
31:34
Speaker 5: wrong paper to the grand jury, then as a matter
31:37
Speaker 5: of course, I think the court would say, you can
31:39
Speaker 5: remedy this by having a new indictment within six months
31:42
Speaker 5: without violating the statute of limitations. On the other hand,
31:46
Speaker 5: if this is because of bad behavior, and it certainly
31:48
Speaker 5: seems like was bad behavior, then the penalty may be
31:51
Speaker 5: throwing out the indictment entirely, and the statute of limitations
31:55
Speaker 5: has run.
31:56
Speaker 2: Thanks so much, Hall, that's Professor Harrold Krant of a
31:59
Speaker 2: Chicago College of Law. And that's it for this edition
32:03
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