Latest / Bloomberg Law / Weekend Law: Habeas Corpus, Menendez Brothers & Recipe Wars

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Weekend Law: Habeas Corpus, Menendez Brothers & Recipe Wars · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio.
0:09
Speaker 2: I just know that on a daylight today that redemption
0:14
Speaker 2: is possible.
0:15
Speaker 3: Nearly thirty years after there were sentenced to life in
0:19
Speaker 3: prison without the possibility of parole for the cold blooded
0:23
Speaker 3: murders of their parents, a remarkable turn for Eric and
0:26
Speaker 3: Lyle Menendez. They now have a chance of getting out
0:30
Speaker 3: of prison. Family members have supported the brothers throughout the years,
0:34
Speaker 3: and they were in court to testify for them at
0:37
Speaker 3: a re sentencing hearing on Tuesday.
0:39
Speaker 4: They are truly deeply sorry for what they did, and
0:44
Speaker 4: they are profoundly remorseful. They are filled with remorse over
0:48
Speaker 4: what they did, and through that they have become pretty
0:51
Speaker 4: remarkable with people.
0:53
Speaker 5: This is something my grandmother, Joan has fought for or
0:57
Speaker 5: for thirty five years. I really wish she was here today,
1:03
Speaker 5: but I'm really excited to give her the news.
1:07
Speaker 3: The new LA District Attorney Nathan Hafckman had attempted to
1:11
Speaker 3: block the resentencing at every turn, arguing repeatedly that Eric
1:16
Speaker 3: and Lyle had not taken complete responsibility for their crimes
1:20
Speaker 3: and didn't show true remorse in.
1:22
Speaker 1: Order to be truly rehabilitated.
1:24
Speaker 6: You have to acknowledge the full breath of your criminal conduct,
1:28
Speaker 6: your cover up, and your life.
1:30
Speaker 3: But Lyle told the judge, I take full responsibility. I
1:34
Speaker 3: killed my parents. I offer no excuse and I don't
1:38
Speaker 3: blame my parents. Eric said, I have profound sorrow for
1:42
Speaker 3: the tragedy I created. I took the lives of my
1:45
Speaker 3: mom and dad. My actions were criminal, cruel, and cowardly.
1:50
Speaker 3: After their statements, Judge Michael Jessic reduced their sentences from
1:55
Speaker 3: life in prison without parole to fifty years to life,
2:00
Speaker 3: making them immediately eligible for parole. But there's still a
2:04
Speaker 3: long road ahead that goes through the parole board and
2:08
Speaker 3: the governor. My guest is Dave Ahrenberg, former Palm Beach
2:11
Speaker 3: County State Attorney and managing partner.
2:14
Speaker 1: At Dave Ehrenberg Law.
2:16
Speaker 3: Dave, let's talk about what this resentencing hearing was and
2:20
Speaker 3: what it wasn't. It wasn't about re litigating the murders,
2:25
Speaker 3: but it was about whether the brothers have been rehabilitated.
2:29
Speaker 2: This hearing was surely for the judge to decide whether
2:34
Speaker 2: or not the Menendez brothers can be resentenced, and he
2:37
Speaker 2: heard testimony from family members and decided that in the
2:43
Speaker 2: interest of justice, that Menanda's brothers would be resentenced under
2:47
Speaker 2: the rules of the time, which permitted someone who committed
2:51
Speaker 2: such a horrific offense who's under the age of twenty
2:54
Speaker 2: six to be eligible for parole. At the time, they
2:57
Speaker 2: were sentenced to life in prison without parole. But now
3:00
Speaker 2: they're changing it to with pearol and now the Menendez
3:03
Speaker 2: brothers can go before the parole board.
3:05
Speaker 7: To let him out.
3:06
Speaker 3: Early Nathan Hawkman, the LA District Attorney, opposed to resentencing
3:12
Speaker 3: and attempted to block it in every way he could.
3:15
Speaker 1: Why was he so opposed to it?
3:18
Speaker 2: He ran on a law and ordered platform and he
3:21
Speaker 2: got elected to be tougher on crime as opposed to
3:24
Speaker 2: the predecessor, Gassone, who was seen as one of those
3:27
Speaker 2: Soro's reform prosecutors. So this is in line with Takman's
3:31
Speaker 2: brand to be tough on crime. And he represented what
3:35
Speaker 2: I considered like pres the silent majority, not the celebrities
3:38
Speaker 2: who came out and masked to support the Menendez brothers,
3:42
Speaker 2: but people who said, I remember this horrific crime and
3:45
Speaker 2: they were sentence a life in prison to get life
3:48
Speaker 2: in prison and that didn't mean thirty five years in prison.
3:51
Speaker 3: The testimony was from family members about how they have
3:56
Speaker 3: rehabilitated themselves in prison.
4:00
Speaker 2: Members were the biggest supporters of an early release. Now
4:03
Speaker 2: all the family members but seemingly one who passed away,
4:06
Speaker 2: wanted them out early. But the district attorney does not
4:10
Speaker 2: represent the victims, does not represent the family members. They
4:13
Speaker 2: represent the people. That's why it's usually the people versus
4:17
Speaker 2: Menendez or the state versus Menendez. And in this case,
4:21
Speaker 2: the decision of the district attorney was that it is
4:24
Speaker 2: in the interest of the people of California that the
4:27
Speaker 2: Menendez brothers stay behind bars.
4:30
Speaker 3: They've been described as model prisoners who helped other prisoners
4:35
Speaker 3: by setting up programs. Were they ever accused of violence
4:40
Speaker 3: or other infractions.
4:42
Speaker 2: Well, there was a report that showed that they did
4:45
Speaker 2: have contraband inside the prison, which was cell phone and
4:49
Speaker 2: potential drugs. That's part of a report. And whether or
4:54
Speaker 2: not that means they have not been reformed. Well, when
4:57
Speaker 2: it comes to violence, they clearly did not to commit
5:00
Speaker 2: anything like that in prison. They were different people behind bars.
5:04
Speaker 2: They helped others, But yet there are a lot of
5:06
Speaker 2: people who find God behind bars. And they help others
5:11
Speaker 2: and they don't get released early from a life sentence.
5:13
Speaker 2: So it seems that the celebrity in this case, the
5:16
Speaker 2: power of celebrity made a real difference.
5:18
Speaker 3: I wonder if this would have happened if you hadn't
5:22
Speaker 3: had that Netflix documentary that sort of introduced a whole
5:26
Speaker 3: new generation to the Menendez brothers in a sympathetic way.
5:32
Speaker 2: I agree the power of streaming, the power of celebrity.
5:35
Speaker 2: I think the Menendez brothers became a cause celeb and
5:38
Speaker 2: as a result, they got some benefits from it. They
5:41
Speaker 2: got all this worldwide attention, They had the best lawyers
5:44
Speaker 2: possible for them, and they were able to convince the
5:47
Speaker 2: district attorney to side with them to get a resentencing.
5:50
Speaker 2: And then that district attorney lost the election, but the
5:53
Speaker 2: judge went ahead with it anyways, And now it's up
5:56
Speaker 2: to the pearle board and the governor, and I think
5:58
Speaker 2: they will be let out early. I don't think there
6:01
Speaker 2: are any risk of reoffending any violent crime. I think
6:04
Speaker 2: they did give reform behind prison walls. But on the
6:07
Speaker 2: other hand, how many other people in their situation get
6:09
Speaker 2: this benefit, get sentence to life in prison and they
6:12
Speaker 2: get out early because they were good prisoners, not many,
6:17
Speaker 2: but this case was treated differently because of the celebrity involved,
6:21
Speaker 2: because of the notoriety, and that's the issue I have.
6:24
Speaker 2: I just don't think they were treated like everyone else.
6:26
Speaker 3: But in their second trial, the judge limited the testimony
6:31
Speaker 3: about the allegations of abuse, and it's possible the jury
6:35
Speaker 3: would have come out with a verdict of manslaughter instead
6:38
Speaker 3: of murder if the abuse allegations had gotten a full hearing.
6:42
Speaker 2: Well, that was a judge's determination at the time, and
6:45
Speaker 2: the crimes were not overturned on appeal. I mean, the
6:47
Speaker 2: proper venue if you think that the judge made a
6:49
Speaker 2: bad decision is to appeal it. But the appellate courts
6:52
Speaker 2: did not agree, thought that they got a fair trial.
6:55
Speaker 2: And as far as being led out, the real reason
6:58
Speaker 2: why they're being led out of at least according to
6:59
Speaker 2: the pres was because of their good behavior behind bars.
7:03
Speaker 3: The DA Hawkman had complained over and over that they
7:06
Speaker 3: hadn't taken responsibility for the crimes, but both brothers made
7:11
Speaker 3: these remarkable statements accepting full responsibility for the murders.
7:17
Speaker 1: Lyle said that all the choices.
7:18
Speaker 3: He made were his own, including quote the choice to reload,
7:22
Speaker 3: returned to the den and run up to my mother
7:25
Speaker 3: and shoot her in the head, and he apologized for
7:27
Speaker 3: making a mockery of the criminal legal system by lying.
7:31
Speaker 3: Does that seem like the kind of apology that the
7:33
Speaker 3: LADA was looking for?
7:35
Speaker 2: It does, and that's something that I thought has been underreported.
7:39
Speaker 2: I'm glad you brought it up, Jin, because Hawkman had
7:42
Speaker 2: asked for a real apology, said enough of this abuse.
7:45
Speaker 2: Excuse take responsibility for your actions. Stop saying that you
7:49
Speaker 2: had to kill your parents because they would have killed
7:51
Speaker 2: you first.
7:51
Speaker 7: That was a lie all along.
7:53
Speaker 2: And I do believe with their statements that they went
7:57
Speaker 2: a long way towards meeting Hawkman request, and that's why
8:01
Speaker 2: I think that they will be released earlier. I do
8:03
Speaker 2: think that this was as close to a full fledged
8:06
Speaker 2: apology acknowledgment of guilt that we have ever seen from them.
8:11
Speaker 2: It was something different than before, and I think that's
8:14
Speaker 2: going to lead to their early release.
8:16
Speaker 3: The judge called the crime shocking. He said he was
8:19
Speaker 3: also shocked by the number of Corrections officials who wrote
8:23
Speaker 3: letters on behalf of the brothers, and that seemed to
8:26
Speaker 3: be an important part of his decision.
8:28
Speaker 2: It was something that corrections officials and family members all
8:32
Speaker 2: sided with them, and I do think the celebrity part
8:34
Speaker 2: of it has something to do with it. The Netflix
8:36
Speaker 2: shows the movement behind them. Yeah, I think that did
8:40
Speaker 2: persuade people. But you know, I do think also there's
8:43
Speaker 2: really little doubt that they are different people today than
8:46
Speaker 2: they were back then. They were real, spoiled, selfish kids
8:49
Speaker 2: who acted in a brutal, horrific way. I mean the
8:52
Speaker 2: fact that the mother, who did not engage in sexual
8:55
Speaker 2: abuse but may have helped cover it up. She was
8:58
Speaker 2: crawling away after being shot by a shotgun, and then
9:01
Speaker 2: the brothers went outside to reload to continue to come
9:05
Speaker 2: in and shoot her ten times in putting in the face.
9:08
Speaker 2: There was so much blood that the cops thought this
9:11
Speaker 2: was a mafia hit, and yet they lied about everything.
9:15
Speaker 2: They went on a spending spree. Only after spending seven
9:18
Speaker 2: hundred thousand dollars in quick turn did they attract the
9:21
Speaker 2: attention of law enforcement and then were eventually arrested. But
9:26
Speaker 2: they got away with it for a while. They got
9:27
Speaker 2: what they wanted, and I thought they deserved their sentence.
9:30
Speaker 2: But you know, they are reformed and if the system
9:34
Speaker 2: lets them out early. I don't think they will reoffend.
9:36
Speaker 3: But a risk assessment by the Parole Board found there
9:39
Speaker 3: was a moderate risk of them committing a crime if released,
9:44
Speaker 3: although the judge said that the legal presumption is in
9:48
Speaker 3: favor of resentencing unless there was an unreasonable risk that
9:53
Speaker 3: they would commit a so called super strike crime such
9:57
Speaker 3: as rape or murder.
9:59
Speaker 2: That was actually eyes when I saw that moderate risk,
10:01
Speaker 2: I don't think they will reoffend me. There's so many
10:03
Speaker 2: eyeballs on these guys. They're going to go on the
10:05
Speaker 2: speaking circuit, They're going to go to reality shows. I mean,
10:08
Speaker 2: I think it's unfair because they're going to be treated
10:11
Speaker 2: in a way that others are not. They're going to
10:13
Speaker 2: get super celebrity and make a lot of money off this,
10:16
Speaker 2: and no one should profit off their infamy.
10:19
Speaker 3: There are several tracks that would allow them to be released.
10:23
Speaker 3: Parole from the parole Board or clemency from the governor
10:27
Speaker 3: seem the most likely. I mean, to get parole, they
10:31
Speaker 3: have to take responsibility for their crimes and show they're
10:36
Speaker 3: unlikely to reoffend, which is basically what the judge considered.
10:41
Speaker 2: I do think that the two tracks will lead to
10:44
Speaker 2: their early release.
10:45
Speaker 7: Whether it's the.
10:46
Speaker 2: Governor Newsom track of the clemency Board and then signed
10:50
Speaker 2: by the Governor or the Parole Board, which is what
10:52
Speaker 2: the judge just tantioned. So either way, I think they're
10:55
Speaker 2: headed towards the release.
10:57
Speaker 3: Their first Parole Board hearing is set for June thirteenth.
11:01
Speaker 1: And if the Parole Board does.
11:03
Speaker 3: Deny parole, it has to do so for a period
11:07
Speaker 3: of three, five, seven, ten or fifteen years, So it
11:11
Speaker 3: could deny parole and then say, well, come back in
11:13
Speaker 3: three years.
11:15
Speaker 2: I would think that would be probably the best case
11:17
Speaker 2: scenario for those who want, I Meananda's brothers to stay
11:19
Speaker 2: behind bars. I do not envision them remaining behind bars
11:23
Speaker 2: that much longer, so three years maybe the outer limit.
11:26
Speaker 3: There's also a Habeas Corpus petition they file back in
11:30
Speaker 3: twenty twenty three, seeking a new trial.
11:34
Speaker 2: That was always the most unlikely thing to happen. Of
11:37
Speaker 2: the three real choice. They had the resented thing, they
11:39
Speaker 2: had the clemency, and then they had the Habeast, but
11:41
Speaker 2: the Habeasts was sort of a dead end.
11:42
Speaker 7: The other two.
11:43
Speaker 2: Though, for Fruit and I think that that's going to
11:47
Speaker 2: lead to their early release.
11:48
Speaker 3: The Habeas Corpus petition was based on two new pieces
11:52
Speaker 3: of evidence. Did that new evidence play any part in
11:56
Speaker 3: Judge Jesseic's decision.
11:58
Speaker 2: I think it did because the judge took everything into account.
12:01
Speaker 2: It was more than the good behavior. It was the
12:03
Speaker 2: fact that there was evidence that the sexual abuse from
12:06
Speaker 2: Jose did occur. Not conclusive evidence, but we had a
12:10
Speaker 2: letter that one of the Menanda's brothers wrote to a
12:12
Speaker 2: cousin that mentioned it. There was also the Menudo boy
12:15
Speaker 2: band member who said that Jose engaged in sexual abuse
12:18
Speaker 2: with him. So yeah, there is evidence.
12:20
Speaker 3: So they have several hurdles ahead of them. Even if
12:23
Speaker 3: the parole board finds them eligible for parole, there's still
12:26
Speaker 3: going to be a ninety day review period during which
12:29
Speaker 3: the governor could block their release.
12:31
Speaker 1: So more to come. Thanks so much, Dave.
12:33
Speaker 3: That's Dave Arenberg, former Palm Beach County State Attorney. I'm
12:37
Speaker 3: June Grosso and you're listening to Bloomberg. The rid of
12:40
Speaker 3: habeas corpus is a bedrock American legal right embedded in
12:45
Speaker 3: the Constitution. Yet White House Deputy Chief of Staff Stephen
12:49
Speaker 3: Miller said the administration has been actively looking at suspending
12:53
Speaker 3: habeas corpus unilaterally.
12:55
Speaker 8: Well, the Constitution is clear, and that, of course is
12:58
Speaker 8: the supreme law of the land that the privilege of
13:02
Speaker 8: the writ of habeas corpus can be suspended in a
13:04
Speaker 8: time of invasion. So it would say that's an option
13:06
Speaker 8: we're actively looking at. Look, a lot of it depends
13:09
Speaker 8: on whether the course do the right thing or not.
13:12
Speaker 3: Habeas corpus has only been suspended four times in our
13:16
Speaker 3: nation's history, essentially in times of war or insurrection. My
13:21
Speaker 3: guest is an expert in constitutional law. Jonathan Adler, a
13:24
Speaker 3: professor at Case Western Reserve Law School, tell us about
13:28
Speaker 3: the history of the writ of habeas corpus.
13:30
Speaker 7: So, the writ of.
13:31
Speaker 6: Habeas corpus traces its way back to the Magna Carta. Literally,
13:35
Speaker 6: habeas corpus is a declaration that you have the body.
13:38
Speaker 6: The idea is that you're challenging the alleged unlawful detention
13:43
Speaker 6: of someone by the government. The writ of habeas corpus
13:46
Speaker 6: has been recognized going back to the seventeenth century as
13:50
Speaker 6: a way of challenging in England, at least the king's
13:53
Speaker 6: right to incarcerate people, and in the United States, the
13:56
Speaker 6: rit of habeas corpus is a way to challenge either
13:58
Speaker 6: a conviction or the government's detention of an individual on
14:02
Speaker 6: the grounds that it is not consistent with law. So
14:05
Speaker 6: in the case of a conviction, we see rits of
14:07
Speaker 6: habeas corpus filed by people who have been convicted of crimes,
14:10
Speaker 6: often people who have been sentenced to the capital punishment,
14:13
Speaker 6: challenging the regularity or the lawfulness of the proceedings through
14:17
Speaker 6: which they are convicted, and then through a habeas corpus
14:19
Speaker 6: can be filed in cases where, for example, someone is
14:22
Speaker 6: alleging that the basis upon which they have been detained
14:24
Speaker 6: or arrested is unlawful. So we've seen this with alleged
14:28
Speaker 6: enemy combatants, and we're seeing it now with individuals who
14:31
Speaker 6: are alleged to be unlawfully present in the country or
14:33
Speaker 6: potentially subject to deportation.
14:35
Speaker 3: The section of the US Constitution that includes the suspension
14:40
Speaker 3: of habeas corpus grants its powers to Congress and not
14:45
Speaker 3: the President.
14:46
Speaker 6: Well, that is the way we've generally interpreted what we
14:49
Speaker 6: call the suspension clause. So Article one, section nine, which
14:52
Speaker 6: is a portion of the Constitution that identifies limits on
14:55
Speaker 6: Congress's power, has a clause that we refer to as
14:58
Speaker 6: the suspension clause reads, the privilege of the writ of
15:01
Speaker 6: habeas corpus shall not be suspended unless when in cases
15:05
Speaker 6: of rebellion or invasion, the public safety may require it.
15:09
Speaker 6: And given that it is in Article one, Section nine,
15:11
Speaker 6: it has always been interpreted as placing a limitation on
15:14
Speaker 6: Congress's ability to suspend the writ of habeas corpus, and
15:18
Speaker 6: that interpretation goes all the way back to eighteen oh seven.
15:22
Speaker 6: Is the first time Supreme Court, in an opinion by
15:24
Speaker 6: Chief Justice Martial, indicated the understanding this is Congress's authority
15:28
Speaker 6: to decide that habeas corpus can be suspended, and historically,
15:33
Speaker 6: with one exception, when the writ of habeas corpus has
15:35
Speaker 6: been suspended, it has either been suspended by Congress or
15:39
Speaker 6: Congress has delegated to the President the authority to suspend
15:42
Speaker 6: the writ in specified circumstances.
15:44
Speaker 3: That interpretation of habeas corpus has been affirmed in Supreme
15:51
Speaker 3: Court opinions in modern times.
15:54
Speaker 7: Yes so.
15:54
Speaker 6: For example, in the case of Homdi, which was a
15:57
Speaker 6: case involving an individual and American citizen who was allegedly
16:01
Speaker 6: captured in Afghanistan as a writer with the Taliban. He
16:04
Speaker 6: was brought to the United States, and he filed oposition
16:08
Speaker 6: for writ of habeas corpus. The question was whether or
16:10
Speaker 6: not he could be detained in the United States without
16:12
Speaker 6: being subject to trial, and if one goes through the
16:14
Speaker 6: opinions in that case, While justices disagreed on a lot
16:17
Speaker 6: of questions about what sort of process mister Hamdi was
16:21
Speaker 6: entitled to and what other constitutional protections he deserved, all
16:24
Speaker 6: of the opinions operated on the premise that if the
16:27
Speaker 6: writ of habeas corpus was to be suspended, it had
16:30
Speaker 6: to be done so pursuant to an Act of Congress
16:32
Speaker 6: subsequent to that in a case called Boomagen also involving
16:36
Speaker 6: alleged enemy combatant from the majority opinion of the Supreme
16:39
Speaker 6: Court in that case made clear that this is a
16:41
Speaker 6: check on executive power. That the writ of habeas corpus
16:44
Speaker 6: often in this sort of context serves as a check
16:47
Speaker 6: on executive power, and it obviously could not serve that
16:49
Speaker 6: function if the executive branch could unilaterally just decide to
16:53
Speaker 6: suspend it.
16:54
Speaker 3: So, if the Trump administration actually did decide to suspend
16:59
Speaker 3: habeas corpus unilaterally, would that definitely constitute a constitutional crisis.
17:05
Speaker 6: Well, two things first, I think when one looks at
17:07
Speaker 6: Miller's comments, I think he was perhaps being very careful.
17:10
Speaker 6: He said they were looking at the option of the
17:13
Speaker 6: privilege of the Writ of habeas corpus being suspended. He
17:16
Speaker 6: did not say whether the executive branch was going to
17:18
Speaker 6: try and do that unilaterally, or whether they were going
17:21
Speaker 6: to ask Congress to do it. My own view is
17:23
Speaker 6: they can look at it all they want, because if
17:25
Speaker 6: they do look at it, they'll realize that they do
17:27
Speaker 6: not have the authority to do it unilaterally. The one
17:30
Speaker 6: time the executive branch did suspend the Writ of habeas
17:33
Speaker 6: corpus unilaterally was during the Civil War when President Lincoln
17:37
Speaker 6: suspended the writ in Baltimore out of a concern that
17:40
Speaker 6: rail lines to the nation's capital would be severed or
17:43
Speaker 6: blocked and that would lead to the fall of Washington,
17:46
Speaker 6: d c. To Confederate forces. And even that in such
17:50
Speaker 6: an extreme circumstance, when the nation was in civil war,
17:53
Speaker 6: when there were hostile troops threatening the nation's capital, even
17:56
Speaker 6: that was recognized as an extreme action. It's one that
18:00
Speaker 6: Congress later ratified, but most people accept was not consistent
18:04
Speaker 6: with the constitution structure. So if the administration were to
18:08
Speaker 6: try to suspend the Writ of abeas Corpus, not particularly
18:11
Speaker 6: doubtful that courts would conclude that that was unlawful, that
18:14
Speaker 6: the administration lacks that authority, and I think they would
18:17
Speaker 6: primarily do so on the grounds that it's just not
18:20
Speaker 6: something the executive branch can do within US territory during
18:24
Speaker 6: peace time. That there's no question that the executive branch
18:27
Speaker 6: does not have that sort of unilateral authority. The more
18:31
Speaker 6: interesting thought experiment would be what if the administration could
18:35
Speaker 6: convince Congress to suspend the Writ. And as I noted before,
18:39
Speaker 6: the language of the suspension clause refers to the reasons
18:43
Speaker 6: why the Writ could be suspended. It says that it
18:46
Speaker 6: shall not be suspended unless when in cases of rebellion
18:49
Speaker 6: or invasion. And so hypothetically, if the administration were to
18:53
Speaker 6: convince Congress that illegal immigration is such that it constitutes
18:58
Speaker 6: an invasion and Congress words spend the Writ, there is
19:01
Speaker 6: an interesting question about whether or not that judgment by
19:04
Speaker 6: Congress would be subject to judicial review. I think the
19:07
Speaker 6: prevailing wisdom is that whether or not Article one, Section
19:11
Speaker 6: nine requirements have been met would be a non justiciable
19:14
Speaker 6: political question. But that's really just a thought experiment, because
19:18
Speaker 6: that would require Congress passing legislation to suspend the WRIT,
19:22
Speaker 6: and it's pretty clear with the margins in Congress right
19:24
Speaker 6: now that's not something that is even remotely likely.
19:27
Speaker 3: The grounds that they refer to for suspending the WRIT
19:32
Speaker 3: are the same grounds basically that they referred to for
19:35
Speaker 3: invoking the Alien Enemies Act, and at least four federal
19:39
Speaker 3: judges have found that America isn't facing an invasion by
19:44
Speaker 3: undocumented migrants. The Supreme Court hasn't weighed in yet on
19:48
Speaker 3: whether the administration can deport people under the Alien Enemies Act,
19:53
Speaker 3: but for a second time on Friday, the Justices said
19:56
Speaker 3: the detainees have to be given due process, a chance
20:00
Speaker 3: to challenge their deportations by a rid of habeas corpus.
20:04
Speaker 6: So the Trump administration is being required to allow the
20:07
Speaker 6: individuals attained to file petitions for Brits of abeas corpus,
20:11
Speaker 6: and I expect that would continue. In the background here,
20:14
Speaker 6: there is this long standing notion that certain questions relating
20:17
Speaker 6: to national security, perhaps even some relating to the border,
20:20
Speaker 6: are what we refer to as political questions, questions that
20:23
Speaker 6: are resolved by the political branches not by courts, And
20:27
Speaker 6: in so far as these questions touch on that, the
20:30
Speaker 6: role that courts have played is to make sure that
20:32
Speaker 6: the legislature and the executive branch each perform their respective functions,
20:36
Speaker 6: but to not second guess their determination. So, if Congress
20:40
Speaker 6: were to conclude that waves of the illegal immigration are
20:44
Speaker 6: at least potentially in an invasion for purposes of the
20:46
Speaker 6: suspension clause, you know, I suspect courts would allow that
20:51
Speaker 6: to stand, not because they would be saying Congress is correct,
20:54
Speaker 6: but because they would be saying, the courts don't get
20:57
Speaker 6: to second guess that. Now, having said all that, I
21:00
Speaker 6: don't think there is any question as a historical matter
21:04
Speaker 6: that illegal immigration, even at far higher rates than we
21:07
Speaker 6: see now, would not constitute an invasion for purposes of
21:11
Speaker 6: that clause. The language of the suspension clause is invoking
21:15
Speaker 6: the idea that there are certain situations, such as rebellion
21:18
Speaker 6: or an invasion by an invading army, that create a
21:21
Speaker 6: situation in which, in effect, the courts are not open.
21:25
Speaker 6: So the idea has been that if martial law, for example,
21:27
Speaker 6: is declared, that effectively tells the courts to stop operations,
21:32
Speaker 6: the writ of habeas corpus when it is suspended by
21:34
Speaker 6: the legislature. That's typically because it's not safe or possible
21:38
Speaker 6: for the courts to engage in their normal functioning. That
21:41
Speaker 6: is the sort of invasion that Article one, section nine contemplates,
21:45
Speaker 6: not higher numbers of people crossing the border than perhaps
21:49
Speaker 6: Congress might like. So I don't think there's any question
21:51
Speaker 6: that as a textual matter or as a historical matter,
21:54
Speaker 6: that the clause would not be satisfied. But there is
21:57
Speaker 6: this question about whether or not it's something that courts
22:00
Speaker 6: can properly issue a decision on, as opposed to leaving
22:03
Speaker 6: it to the interplay between the executive and the legislature.
22:06
Speaker 3: Did you hear a subtle threat to judges in Miller's comments?
22:10
Speaker 3: He said, these radical rogue judges are at war with
22:14
Speaker 3: the executive branch and the legislative branch, and the administration's
22:19
Speaker 3: decision on whether to suspend habeas corpus depends a lot
22:23
Speaker 3: on whether the courts do the right thing or not.
22:27
Speaker 6: Yeah, so, I mean, you know, Steve Miller's not a lawyer,
22:30
Speaker 6: but he is someone that often speaks about legal issues
22:34
Speaker 6: for the administration and often says things that aren't quite right.
22:38
Speaker 6: As a legal matter, but I think do echo the
22:41
Speaker 6: message that the administration wants to send, particularly to its base.
22:45
Speaker 6: I think in this sort of context, there is this
22:49
Speaker 6: implicit threat, or this very adversarial posture to the Court's
22:53
Speaker 6: suggestion that of courts don't cooperate, or if the courts
22:55
Speaker 6: obstruct the administration's agenda, the administration will look forward to
23:00
Speaker 6: push back in an extreme way, and this certainly could
23:03
Speaker 6: be one of them. I'm not entirely sure this is
23:07
Speaker 6: an effective strategy for the administration. I mean, certainly, I
23:11
Speaker 6: can't imagine lawyers who work in the administration making these
23:14
Speaker 6: sorts of comments publicly, certainly not the lawyers that have
23:17
Speaker 6: to themselves appear in court. And it's not clear to
23:20
Speaker 6: me that these sorts of comments are helpful, and I
23:23
Speaker 6: doubt they do much to change the way judges evaluate
23:27
Speaker 6: these sorts of claims. In fact, in some cases, they
23:30
Speaker 6: might even undermine the administration's position insofar as they suggest
23:34
Speaker 6: the administration is not dotting its size and crossing its
23:37
Speaker 6: peace on legal question.
23:38
Speaker 3: And after Friday seven to two decision where the Supreme
23:42
Speaker 3: Court blocked the administration from using the Alien Enemies Act
23:46
Speaker 3: to summarily deport alleged gang members being held in a
23:50
Speaker 3: Texas facility. It seems like seven justices are going to
23:54
Speaker 3: insist that the detainees have the chance to file habeas
23:59
Speaker 3: corpus petitions. Thanks so much, Jonathan. That's Professor Jonathan Adler
24:04
Speaker 3: of Case Western Reserve Law School. I'm June Grosso and
24:08
Speaker 3: you're listening to Bloomberg.
24:17
Speaker 2: Today.
24:17
Speaker 3: I'm going to be sharing with you the best ever
24:20
Speaker 3: vanilla cake recipe. It's nice and light and fluffy, it's
24:24
Speaker 3: golden on the outside. It may be the best vanilla
24:28
Speaker 3: cake recipe, but another baker says it's her recipe. Australian
24:33
Speaker 3: influencer and baking guru Brooke Bellamy has millions of followers
24:38
Speaker 3: on TikTok and her first cookbook was a best seller,
24:42
Speaker 3: but her recipes for caramel slice and baklava went from
24:46
Speaker 3: sweet to sour after another celebrity chef, Naji Mahashi, accused
24:52
Speaker 3: Bellamy of copying those.
24:53
Speaker 1: Recipes from her, and then yet another.
24:56
Speaker 3: Celebrity chef accused her of copying the vanilla cake cake recipe.
25:01
Speaker 3: Bellamy denied the accusations, saying she created the recipes over
25:06
Speaker 3: many years, but the fallout. The media coverage and the
25:09
Speaker 3: online trolling have been so intense that Bellamy went into
25:14
Speaker 3: hiding and Mahasha even tried to turn down the vitriol
25:18
Speaker 3: in an Instagram post.
25:20
Speaker 9: Please stop the trolling now. I know I've made serious allegations,
25:27
Speaker 9: but this does not justify the personal attacks that I've
25:32
Speaker 9: seen online against Brook Bellamy.
25:35
Speaker 3: My guest is intellectual property litigator Terrence Ross, a partner
25:39
Speaker 3: Katin Yuchen Rosenman Terry. Let's start with the legal basics.
25:44
Speaker 3: Can you copyright a recipe?
25:46
Speaker 7: So June? In theory, it is possible to copyright cookbook
25:50
Speaker 7: or even a few individual recipes. It's very hard to do.
25:54
Speaker 7: It's considered one of the trickiest theories of the law,
25:57
Speaker 7: and a little bit of protection you do get if
26:00
Speaker 7: you're capable of getting a copyright is called thin protection
26:04
Speaker 7: by copyright lawyers, which essentially means that you've got to
26:06
Speaker 7: put the book on a xerox machine and copy it
26:09
Speaker 7: word for word for there to be infringement. The problem
26:12
Speaker 7: here is that copyright doesn't allow protection of ideas, and
26:15
Speaker 7: a recipe how to bake a cake is simply an
26:18
Speaker 7: idea and embedded in that idea, are some scientific principles
26:22
Speaker 7: that are just required, and you're not allowed to copyright
26:24
Speaker 7: scientific principles either. And it's got to be the certain
26:27
Speaker 7: amount of the ingredients to get the right flavor, it's
26:29
Speaker 7: got to be a certain temperature being baked in the oven,
26:31
Speaker 7: and those aren't copyrightable. And so it is a very
26:34
Speaker 7: challenging thing to assert copyright in a recipe or cookbook.
26:38
Speaker 7: And about the only parts that can be copyrighted or
26:42
Speaker 7: sort of the expression of the recipe so style the
26:44
Speaker 7: wording describing what this cake is going to turn out
26:47
Speaker 7: to be, what this cookie tastes like, as opposed to
26:50
Speaker 7: the actual recipe.
26:51
Speaker 3: So tell us about this recipe dispute, which has really
26:54
Speaker 3: gotten a lot of play, not only in Australia but internationally.
26:58
Speaker 7: So it's an interesting copyright dispute that came up in Australia.
27:02
Speaker 7: There's a very famous ticktock baking influencer in Australia name
27:07
Speaker 7: of brook Bellamy, and she has over three million followers
27:12
Speaker 7: and is famous for posting TikTok videos of how you
27:16
Speaker 7: bake you know, tasty treats. She actually runs a chain
27:20
Speaker 7: of bakeries in Australia. And has achieved quite a bit
27:24
Speaker 7: of notoriety down Under, but also expanding outside of Australia.
27:29
Speaker 7: And so last October she came out with her first
27:32
Speaker 7: cookbook and it was called Bake with Brookie, and that's
27:36
Speaker 7: in partant names after her big good stores, which are
27:39
Speaker 7: called Brookies bake Houses. But this book, because of her
27:42
Speaker 7: fame as an influencer in the baking circles, was an
27:46
Speaker 7: instant success. It sold over one hundred thousand copies in
27:49
Speaker 7: less than six months, growth sales around four million dollars
27:53
Speaker 7: and was the second best selling book for the Australian
27:56
Speaker 7: Christmas season last year, so very very successful and just
28:00
Speaker 7: a couple of days before the Australian Book Industry Awards,
28:05
Speaker 7: which is a big deal in publishing circles in Australia,
28:08
Speaker 7: and her book Baked with Brookie was in competition for
28:11
Speaker 7: Best Cookbook with a couple other famous long time baking experts,
28:15
Speaker 7: and one of them, Naji Mahashi, posted online that she
28:19
Speaker 7: thought two of the recipes in Bake with Brookie were
28:22
Speaker 7: plagiarized from her own cookbook and laid out the arguments
28:26
Speaker 7: as to why, and this caused quite a stir and
28:30
Speaker 7: then to make things worse, Sally McKenny, famous American baking
28:36
Speaker 7: cook with a number of cookbooks of her own out
28:38
Speaker 7: sort of piled on and said that she thought that
28:40
Speaker 7: the vanilla cake recipe in Bake with Brookie had been
28:44
Speaker 7: taken from one of her books. And when you compare
28:46
Speaker 7: the recipes side by side, there is almost an identity
28:50
Speaker 7: of ingredients and amounts and cooking temperatures. But in the
28:53
Speaker 7: case of Sally mckenny's vanilla cake, she does something sort
28:57
Speaker 7: of unusual. She uses buttermilk and Brooke Bellamy in Bake
29:01
Speaker 7: with Brookie, her recipe for vanilla cake also used buttermilk,
29:05
Speaker 7: which struck selling Kenny's odd so she brought this out
29:08
Speaker 7: and it was sort of that point. The oven midst
29:10
Speaker 7: were off, Folks were chiming in and trolling Brooke Bellamy
29:14
Speaker 7: onlines to the point where she had to shut down
29:17
Speaker 7: her ig account. The press was pamped outside her house
29:21
Speaker 7: so she couldn't leave the house. She did not attend
29:23
Speaker 7: the awards ceremony for the book Industry. Now. The only
29:26
Speaker 7: time she's left her house since this happened last week
29:28
Speaker 7: of April was to go visit her lawyers, and she
29:31
Speaker 7: was followed the entire way.
29:33
Speaker 3: Did Nagi Mahashi file a lawsuit against her.
29:36
Speaker 7: So there is not actually a copyright infringement lawsuit filed yet.
29:41
Speaker 7: Naji Mahashi has taken it to her lawyers, who have
29:45
Speaker 7: reached out to the lawyers for the publishing house to
29:48
Speaker 7: publish Bake with Brookie the Penguin Random House Group, and
29:51
Speaker 7: the two sides have exchanged letters apparently making accusations and
29:55
Speaker 7: denying accusations, and Brooke Bellamy one of the few postings
29:58
Speaker 7: she's done is a complete deny aisle in an explanation
30:01
Speaker 7: that much of the recipe business, both in baked goods
30:05
Speaker 7: and dinners, lunches and things, all that is derivative to
30:08
Speaker 7: start with, and you build on the same foundation, and
30:11
Speaker 7: therefore she does not believe that she did anything just
30:15
Speaker 7: reputable dishonest alone unlawful.
30:17
Speaker 3: But if the recipe can't be copyrighted, what are the
30:21
Speaker 3: allegations or causes of action you could even bring.
30:25
Speaker 7: So it's not that recipes can't be copyrighted. In theory,
30:28
Speaker 7: they can be copyrighted, it's just very hard to do that.
30:31
Speaker 7: And to the extent that you have copyright protection, it
30:33
Speaker 7: almost has to be an exact duplicate of the recipe
30:36
Speaker 7: to constitute copyright infringement. A lot of what's going on
30:41
Speaker 7: here is moral posturing. There is this background noise that
30:45
Speaker 7: is being created that somehow Brooke Bellamy is not being honest,
30:50
Speaker 7: is stealing other people's works. Won't say being a fraud,
30:53
Speaker 7: but you know that's the implication that people want to draw.
30:56
Speaker 7: In a very competitive industry in which people are fighting
30:58
Speaker 7: for book sales and the June this is not something
31:01
Speaker 7: that's new. The problem is that the law is so
31:04
Speaker 7: weak in the area it almost invites plagiarism, if not
31:07
Speaker 7: copyright infringement. If you take the very first US American cookbook,
31:12
Speaker 7: very famous book called American Cookery by Amelia Simmons, who
31:16
Speaker 7: was apparently a domestic servant in a household in Connecticut
31:20
Speaker 7: in the early Republic, and she published this herself, she
31:24
Speaker 7: paid for it in seventeen ninety six, and it was
31:27
Speaker 7: unique because it used exclusively American ingredients, it used American
31:31
Speaker 7: cooking language, and put forward a lot of very famous
31:35
Speaker 7: but duil that time, sub rosa American recipes. So this
31:38
Speaker 7: was the first cookbook to have pumpkin pie in it.
31:41
Speaker 7: It was the first cookbook to suggest cranberried sauce with turkey.
31:45
Speaker 7: It was the first cookbook to use the word cookie,
31:47
Speaker 7: and it sold more copies than any other book in
31:51
Speaker 7: the Early Republic other than the Bible. The problem was,
31:54
Speaker 7: as Miss Simmons said in her second edition, so she
31:57
Speaker 7: wasn't making any money off of it. People were freely
32:00
Speaker 7: being it and distributing it very widely. The main reason
32:02
Speaker 7: she came out with secondition was to correct errors that
32:05
Speaker 7: the publisher had made that were pretty big errors regarding
32:08
Speaker 7: types of ingredients to be used in the mounts and
32:10
Speaker 7: temperatures to be cooked bad. But I mean, historians have
32:12
Speaker 7: called this book the second tech Question of Independence because
32:14
Speaker 7: he said to Americans, we no longer had to follow
32:16
Speaker 7: British cooking traditions, baking traditions. We have everything we need
32:20
Speaker 7: here to be Americans, even in our domestic household, and
32:22
Speaker 7: was very influential with women. And yet there was massive
32:25
Speaker 7: plagiarism for fifty years, to the extent where people were
32:28
Speaker 7: starting to substitute out her name, so she wasn't even
32:30
Speaker 7: getting credit. He flashed forward in time and he come
32:32
Speaker 7: to nineteen eighty four, and you have this famous case
32:34
Speaker 7: between Richard Only and Richard Nelson. Richard Only had written
32:38
Speaker 7: a number of French recipe books in English, very influential
32:41
Speaker 7: in bringing French cooking to America. And Richard Nelson came
32:44
Speaker 7: out with a new book on American French recipes I
32:47
Speaker 7: think it was called, and Richard Only said, wait, a Mesican,
32:49
Speaker 7: I count thirty nine recipes that you took out of
32:51
Speaker 7: my book. And he actually filed a lawsuit, and the
32:55
Speaker 7: defendant agreed to the entry of an order stipulating that
32:58
Speaker 7: there had been infringement, So it wasn't aggressively litigated. He
33:01
Speaker 7: just wanted to get rid of the lawsuit and entered
33:04
Speaker 7: into a stipulated order. But there're a case where copyright
33:08
Speaker 7: lawsuit was actually thought of. It flashed forward in time
33:11
Speaker 7: to twenty twenty one in the UK and the publishing
33:13
Speaker 7: house Bloomsbury with drew what was a really enthusiastically expect
33:18
Speaker 7: that new book on Singaporean recipes by Elizabeth Hey and
33:22
Speaker 7: another Singaporean chef, Sharon. We had a last year that
33:26
Speaker 7: most of the recipes were taken from an older book
33:29
Speaker 7: by her, and the publishing house withdrew the work they'd
33:31
Speaker 7: already printed some seventeen thousand copies and were ready to
33:34
Speaker 7: go to market, and just the mere suggestion that there
33:38
Speaker 7: had been copyright infringement caused them to withdraw the work
33:41
Speaker 7: and not publish it. In effect. So we have this
33:43
Speaker 7: long history of disputes over recipes and cookbooks despite this
33:49
Speaker 7: whole legalarity being sort of a gray area as to
33:52
Speaker 7: whether or not there is protection, there's not protection, what's protected?
33:56
Speaker 7: How much do you have to take to get protection?
33:58
Speaker 7: How much do you need to take the order to
34:00
Speaker 7: be able to bring an infringement lawsuit? But they keep
34:02
Speaker 7: coming up, you know, every decade or so, and now
34:04
Speaker 7: this dispute would refell me. It's just another example of
34:07
Speaker 7: that down under this time. But the substantive law of
34:11
Speaker 7: copyright is the same under Australian US UK law when
34:15
Speaker 7: it comes to cookbooks and recipes, and so it's just
34:17
Speaker 7: interesting to see this flare up from time to time
34:20
Speaker 7: across the different continents.
34:21
Speaker 3: So if Naji Mahashi came to you and said I
34:23
Speaker 3: want to sue take my case.
34:25
Speaker 1: What would you do?
34:26
Speaker 2: You know?
34:27
Speaker 7: I think I would say that your chances of getting
34:30
Speaker 7: ultimately a verdict for damages in a copyright infringement lawsuit
34:36
Speaker 7: would not be good. However, Australia does have one feature,
34:40
Speaker 7: and it's a copyright law that the United States law
34:42
Speaker 7: does not have. It's this notion of moral rights. When
34:45
Speaker 7: you use somebody else's work in this way, you have
34:48
Speaker 7: to give them credit or you've committed a separate, unlawful action,
34:51
Speaker 7: which is at least remediable by an injunction requiring that
34:56
Speaker 7: credit be given where credit is due. And so there
34:59
Speaker 7: is that option, But my advice would be to go
35:01
Speaker 7: about it exactly the way Naja Mahashi's listeners are going
35:04
Speaker 7: about it. You bring up the issue with the publishing
35:06
Speaker 7: house and you say, look, we think there's a problem here,
35:09
Speaker 7: and see what they say, and then if they deny it,
35:12
Speaker 7: you have a basis to take that to the court
35:14
Speaker 7: of public opinion. Is being done here and see what happened.
35:17
Speaker 7: Because after a lot of what's going on here has
35:20
Speaker 7: to do with competition within the cookbook field, and there's
35:23
Speaker 7: this general perception that you should not be plagarizing other
35:27
Speaker 7: people's recipes. But if you choose to do so, you
35:30
Speaker 7: ask permission and give credit. And I cannot tell you,
35:33
Speaker 7: June how many potential copyright cases I've been able to
35:37
Speaker 7: avoid on behalf of my clients simply by telling them, look,
35:41
Speaker 7: say you're sorry, and give full credit, because at the
35:44
Speaker 7: end of the day, that's often what it's all about.
35:48
Speaker 7: They just want to be recognized as this was their creation,
35:52
Speaker 7: this was their work, and especially in this field of
35:54
Speaker 7: cookbooks recipes, permissions are often granted to allow someone to
35:59
Speaker 7: use another person and recipe. You just have to ask
36:01
Speaker 7: and then give credit. And I think that's the big
36:03
Speaker 7: lesson to be learned here with respect to copyright law
36:06
Speaker 7: in the context of potbooks and recipes, because.
36:09
Speaker 1: It seems like the damage has already been done here.
36:11
Speaker 1: I mean, she's hiding in her house.
36:13
Speaker 7: I think this is probably an enormous financial hit. Certainly
36:18
Speaker 7: it's bound to affect sales of her book Bake with Brookie.
36:23
Speaker 7: She's taken down her social media and when you have
36:27
Speaker 7: a large portion of your persona wrapped up as an
36:32
Speaker 7: online influencer in the social media forms, to have that
36:35
Speaker 7: simply disappear, it's not just personally hurtful to you, it's
36:38
Speaker 7: financially damaging.
36:40
Speaker 3: And the repercussions for Bellamy seem to be continuing. Thanks
36:44
Speaker 3: so much, Terry. That's Terrence Ross of Catain Euchen Rosenman,