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Are Boat Strikes Legal & Right to Counsel · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grosse from Bloomberg Radio.
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Speaker 2: Venezuelan President Nicholas Maduro said he's asked Pope Leo the
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Speaker 2: fourteenth to help maintain peace in the South American country.
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Speaker 2: Maduro's comments come as the United States military continues to
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Speaker 2: strike alleged drug carrying boats in the waters off Venezuela,
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Speaker 2: in what President Donald Trump has declared an armed conflict
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Speaker 2: with cartels.
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Speaker 3: We're blowing the Venezuelan narco terrorists. We're blowing them the
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Speaker 3: hell out of the water.
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Speaker 4: Every time you see a.
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Speaker 5: Boat, thousands of people die from the cargo in that boat.
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Speaker 3: Thousands of people die.
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Speaker 2: The US military has carried out four deadly strikes in
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Speaker 2: the Caribbean since last month. The latest killed four people
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Speaker 2: on Friday. The Trump administration has told lawmakers the president
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Speaker 2: is treating drug traffickers as unlow combatants and military force
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Speaker 2: was required to combat them. That assertion of presidential war
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Speaker 2: powers sets the stage for expanded action and raises questions
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Speaker 2: about how far the administration will go without a sign
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Speaker 2: off from Congress. My guest is an expert on national
1:19
Speaker 2: security and the law of armed conflict. Matthew Waxman, a
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Speaker 2: professor at Columbia Law School. Why has President Trump labeled
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Speaker 2: the drug runners as a foreign terrorist organization and call
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Speaker 2: them narco terrorists?
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Speaker 1: So, I think it makes sense to think about the
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Speaker 1: Trump administration's actions as an escalating series of legal moves.
1:43
Speaker 1: It had designated some cartels as foreign terrorist organizations or
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Speaker 1: ftos that unlocks certain criminal law, immigration, and sanctions authorities.
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Speaker 1: It invoked an ancient law going back to seventeen ninety
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Speaker 1: eight that authorizes the swift removal from the United States
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Speaker 1: of enemy aliens quote enemy aliens as the term, and
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Speaker 1: it applied that to suspected members of Trend de Arragua.
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Speaker 1: It's used lethal force against Trend Dearragua drug vessels or
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Speaker 1: suspected vessels in the Caribbean, claiming that these were done
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Speaker 1: in self defense. And then, most dramatically of all, the
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Speaker 1: Trump administration has labeled its conflict with certain international drug
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Speaker 1: cartels as a quote armed conflict, which is a legal
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Speaker 1: state of war. And one of the most significant implications
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Speaker 1: of that declaration is that it would justify using lethal
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Speaker 1: force against cartel members, essentially treating them all as enemy soldiers. Now,
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Speaker 1: the Trump administration has provided very little information, so we
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Speaker 1: still don't really know how far the Trump administration is
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Speaker 1: stretching that theory. But the basic gist is that the
3:11
Speaker 1: Trump administration is saying that the United States is, as
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Speaker 1: a legal matter, in a war with drug cartels, and
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Speaker 1: therefore it can target their members, just like the United
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Speaker 1: States could target enemy soldiers.
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Speaker 2: As far as saying this is being done in self defense,
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Speaker 2: Senator Ran Paul of Kentucky challenged that. He said the
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Speaker 2: US has the right to self defense, but argued that
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Speaker 2: right is not triggered by a speedboat twenty seven hundred
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Speaker 2: miles from the US alleged to have drugs and not
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Speaker 2: attacking US vessels. And Secretary Hegsith, when he described the
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Speaker 2: latest strike, said they were bringing drugs. So where is
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Speaker 2: the element of self defense here?
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Speaker 5: Yeah?
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Speaker 1: I think there are two problems with the self defense argument.
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Speaker 1: The first is that, as a legal matter, self defense
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Speaker 1: usually requires that either you've already been attacked or an
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Speaker 1: attack is imminent. Right, if a missile were headed towards
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Speaker 1: the United States or an enemy aircraft, you could take
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Speaker 1: some self defensive action when it was about to attack US.
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Speaker 1: But here we're talking about vessels that were far out
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Speaker 1: at the In fact, the Trump administration has even conceded
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Speaker 1: that they were distant from the United States. They could
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Speaker 1: have been interdicted, but the Trump administration decided to use
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Speaker 1: self defensive lethal force instead. I think a second problem
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Speaker 1: with claiming self defense is that usually it would require
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Speaker 1: that a violent attack be directed against the United States,
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Speaker 1: and it has to be essentially the use of military
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Speaker 1: violence against the United States. And here we're talking about
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Speaker 1: the infiltration of violent gangs. We're talking about the infiltration
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Speaker 1: of very, very dangerous narcotics. But that's different, that's a
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Speaker 1: very different kind of harm than the kind of kinetic
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Speaker 1: military violence that traditionally gives rise to a right of
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Speaker 1: self defense.
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Speaker 2: I mean, who would actually sue the United States in
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Speaker 2: this situation? Would anyone have standing to sue and say
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Speaker 2: these strikes are against the law?
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Speaker 4: Maybe?
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Speaker 1: I mean, this is a general challenge with international law
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Speaker 1: is that in most cases there is not some centralized
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Speaker 1: authoritative enforcement mechanism. International laws tends to be enforced in
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Speaker 1: this sort of a decentralized way, and often it's the
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Speaker 1: responsibility of states to hold other states responsible. It's possible
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Speaker 1: that there could be litigation here. I've heard chatter about,
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Speaker 1: for example, an international court getting involved. I think that
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Speaker 1: is very unlikely and would have virtually no effect at
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Speaker 1: all on US actions. It's possible that there might be
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Speaker 1: litigation here in the United States, but that's going to
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Speaker 1: be hard, especially because those who you might expect to
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Speaker 1: have a case against the United States are already dead.
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Speaker 1: I think where one might see some enforcement, and I
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Speaker 1: would put the word enforcement in quotes here is from
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Speaker 1: US partners and allies that international law tends to play
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Speaker 1: an important role in facilitating cooperation among states, and that
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Speaker 1: kind of cooperation is especially important to stemming the drug trade,
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Speaker 1: to promoting US interests in the hemisphere. And so one
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Speaker 1: thing I'll be watching for is the extent to which
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Speaker 1: partners and allies in the region and further abroad are
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Speaker 1: sort of pushing back and imposing some diplomatic or political
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Speaker 1: costs on what the United States is doing here.
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Speaker 2: Also, the Trump administration is bulking up in the Southern
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Speaker 2: Caribbean with at least eight warships, one nuclear submarine, more
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Speaker 2: than four thousand troops, fighter jets, drones, and surveillance plans.
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Speaker 2: It's been called the biggest US naval mobilization in Latin
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Speaker 2: America since the invasion of Panama in nineteen eighty nine,
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Speaker 2: and Corina Bloomberg sources. Trump has hinted that the US
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Speaker 2: is going to turn to interrupting the flow of drugs
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Speaker 2: on land in Venezuela. How much of a step up
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Speaker 2: is that and where do they get the authority for that?
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Speaker 1: Yeah, that would be a major escalation and would pose
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Speaker 1: additional legal problems. And it raises additional legal issues because
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Speaker 1: the United Nations Charter prohibits the use of military force
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Speaker 1: against the territorial integrity of UN member states. That's one
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Speaker 1: of the kind of bedrock ideas in the UN Charter.
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Speaker 1: And so unless another state consents to the use of
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Speaker 1: US military force on their territory, the United States would
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Speaker 1: need to sug justify doing so. And I suppose the
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Speaker 1: best theory, the best argument would be either that Venezuela
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Speaker 1: itself has attacked the United States. We haven't really seen
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Speaker 1: any evidence of that. In fact, I think the best
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Speaker 1: indication of what the intelligence community has been reporting is
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Speaker 1: that the Venezuela and government has not been directing attacks
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Speaker 1: against the United States. Another argument, though, might be that
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Speaker 1: the government of Venezuela has been unwilling or unable to
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Speaker 1: stem the flow of drugs from its own territory headed
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Speaker 1: towards the United States. I think that's probably what the
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Speaker 1: Trump administration would argue. There Again, you come back to
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Speaker 1: this problem though, that under international law there's a right
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Speaker 1: of self defense against military attacks, so called armed attacks,
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Speaker 1: but there isn't a right of self defense against other
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Speaker 1: kinds of harms. They could be environmental harms, they could
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Speaker 1: be dangerous drugs, they could be ransomware. There are lots
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Speaker 1: of harmful activities that cross borders. International law does not
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Speaker 1: recognize a right of armed self defense against those harms.
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Speaker 1: The right of self defense is really limited to armed attacks.
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Speaker 2: Where does it fit in or how does it complicate?
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Speaker 2: Matters that the Trump administration has called President Maduro and
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Speaker 2: narco terrorists whose orchestrated drug trafficking, and the US has
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Speaker 2: offered fifty million dollars for information leading to his arrest.
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Speaker 4: Yeah.
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Speaker 1: You know, one challenge here for lawyers and those who
10:28
Speaker 1: are trying to analyze the situation is it's very hard
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Speaker 1: to distinguish between administration rhetoric and administration sort of public
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Speaker 1: posturing and its actual legal arguments. The administration has said
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Speaker 1: very very little about its legal theory. It's said very
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Speaker 1: little about the facts that would support its claims of
10:52
Speaker 1: self defense that would underlie this claim that the United
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Speaker 1: States is engaged in an armed conflict. And until we
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Speaker 1: have more of those facts, until we have greater clarity
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Speaker 1: on what the Trump administration is arguing, it's very difficult
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Speaker 1: to draw much in the way of conclusions. I think
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Speaker 1: the Trump administration is making an error in not being
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Speaker 1: more forthcoming. I think it's incumbent on the United States
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Speaker 1: to make clear its legal justifications, especially when it comes
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Speaker 1: to military actions abroad, and I think it's undermining any
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Speaker 1: chance it has to try to persuade partners, allies, other states,
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Speaker 1: other actors of the legitimacy of its actions by being
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Speaker 1: so opaqued in its legal arguments, so opaqued in the
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Speaker 1: basic facts that it's basing its actions on.
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Speaker 2: Coming up next, where a linked memo fits in this
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Speaker 2: is Bloomberg. The US military has carried out four deadly
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Speaker 2: strikes against alleged drug carrying votes in the waters off Venezuela,
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Speaker 2: in what President Trump has declared an armed conflict with cartels.
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Speaker 2: The Trump administration has told lawmakers the President is treating
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Speaker 2: drug traffickers as unlawful combatants and military force was required
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Speaker 2: to combat them. I've been talking to Columbia Law School
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Speaker 2: professor Matthew Waxman. What's the import of that leaked memo
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Speaker 2: that the Trump administration sent to Congress saying that the
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Speaker 2: government had decided it was in a non international armed
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Speaker 2: conflict with the designated terrorist groups from Venezuela.
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Speaker 1: That, as far as I know, the most extensive explanation
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Speaker 1: of its legal arguments. And I think it's telling that
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Speaker 1: we only know about it because it was leaked and
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Speaker 1: then reported I leave first in the New York Times.
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Speaker 1: And that's an example of where I think it would
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Speaker 1: behoove the Trump administration to at least explain publicly its actions.
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Speaker 1: I think that's would not only be the smart thing
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Speaker 1: to do from a policy and legal standpoint, but I
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Speaker 1: think it's also the right thing to do in a
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Speaker 1: rule of law democracy. While I'm critical here of the
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Speaker 1: Trump Administration's legal claims, I don't want to cast any
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Speaker 1: doubt on the grave harms that narcotics trafficking is causing
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Speaker 1: here in the United States, untold numbers of death, violent crime,
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Speaker 1: and we are talking about narcotics traffickers who do reeld
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Speaker 1: violence in a very brutal way, not against the United
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Speaker 1: States government, but against individuals, and it is a problem
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Speaker 1: that is a tragic one. The Trump administration is right
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Speaker 1: to take very very aggressive actions to try to stem
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Speaker 1: the tide of narcotics trafficking, especially coming across our southern border.
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Speaker 1: But there are some deep legal problems, or at least
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Speaker 1: big question marks about some of the specific methods it's
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Speaker 1: been using and the way it's tried to justify them.
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Speaker 2: What do you think will come from Trump designating Antifa
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Speaker 2: as a major terrorist organization?
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Speaker 1: Well, that's different for a couple of reasons. One is
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Speaker 1: that's just not a thing in law. There are statutes
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Speaker 1: that create a designation of a foreign terrorist organization and
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Speaker 1: that carries some legal consequences. There is no parallel for
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Speaker 1: what one might label domestic terrorist organizations, and I think
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Speaker 1: the Antifa case shows one reason why, which is very
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Speaker 1: susceptible to politicization how one labels a domestic group or
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Speaker 1: a domestic political movement. And one thing that I think
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Speaker 1: would be especially damaging to the political process here within
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Speaker 1: the United States would be the use of terrorist designation
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Speaker 1: to try to go after political enemies. And I'm not
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Speaker 1: making a judgment here about Antifa and what it is
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Speaker 1: or isn't. I'm just saying that I think there are
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Speaker 1: good reasons why the United States government has created such
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Speaker 1: a category of foreign terrorist organizations but not taken a
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Speaker 1: parallel step in the past for domestic terrorist organizations. Are
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Speaker 1: so called domestic terrorist organizations.
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Speaker 2: Do you think that the president having broad latitude and
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Speaker 2: matters of national security and determining what that is would
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Speaker 2: play in here if this was somehow challenged.
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Speaker 1: I think it would. But you know, historically, the president
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Speaker 1: has had a lot of flexibility to determine threats to
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Speaker 1: the US national security, national defense, and I think there
16:26
Speaker 1: are good reasons for that. The presidents of the United
16:29
Speaker 1: States has the power of the agility to act quickly.
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Speaker 1: The president has access to valuable information to try to
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Speaker 1: make those kinds of assessments. But deferring to the executive
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Speaker 1: branch to the president on these kinds of matters has
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Speaker 1: always carried a big danger, which is the president might overreach,
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Speaker 1: the president might abuse those powers. And this has been
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Speaker 1: a challenge since the the birth of the republic. And
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Speaker 1: I think one thing we're seeing from the Trump administration
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Speaker 1: is really the worst kind of overreach across a range
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Speaker 1: of issues, and so I think it's calling into big
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Speaker 1: doubt whether the system of checks and balances that we've
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Speaker 1: relied on really are continuing to function in the Trump era.
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Speaker 2: That's a question that many have asked recently. Thanks so much, Matthew.
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Speaker 2: That's Professor Matthew Waxman of Columbia Law School, turning now
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Speaker 2: to other legal news. It's the most difficult decision a
17:41
Speaker 2: criminal defendant has to make a trial, whether or not
17:44
Speaker 2: to take the stand. And when a defendant does decide
17:48
Speaker 2: to take the risk of testifying, how can his attorney
17:51
Speaker 2: advise him during that testimony. That question was at the
17:55
Speaker 2: heart of oral arguments before the Supreme Court on the
17:59
Speaker 2: first the term. David Villarreal took the stand during his
18:03
Speaker 2: trial for murdering his boyfriend. When there was an overnight
18:07
Speaker 2: break in his testimony, the judge barred Villarrial's attorney from
18:12
Speaker 2: discussing his testimony with him. Villarreal was convicted and sentenced
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Speaker 2: to sixty years, but he says that his constitutional right
18:20
Speaker 2: to counsel was violated by the judge's order, and he's
18:24
Speaker 2: asking the Supreme Court to overturn his conviction. During the
18:28
Speaker 2: oral arguments, the justices questioned just what kind of broader
18:33
Speaker 2: trial strategies a lawyer could talk to his client about
18:37
Speaker 2: during an overnight break without crossing over into coaching the
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Speaker 2: client's testimony. Chief Justice John Roberts posed a hypothetical to
18:46
Speaker 2: the lawyer for the State of Texas about a defendant
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Speaker 2: asking his attorney whether he should stop testifying about Fred
18:54
Speaker 2: when he got back on the stand.
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Speaker 4: And I noticed every time I do that, jur number
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Speaker 4: eight gets a big frown and shakes his head. He
19:03
Speaker 4: doesn't look to me like he likes the idea of
19:05
Speaker 4: talking about Fred at all. So I think that's a
19:08
Speaker 4: bad idea. Now talking about Fred was your idea? Do
19:11
Speaker 4: you still think it's a good idea? Can the lawyer
19:15
Speaker 4: respond to that question.
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Speaker 5: No, they you would have to tell them my mom
19:20
Speaker 5: to a core order not to out to answer.
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Speaker 4: So at that point he tells the defendant, who's facing
19:24
Speaker 4: a capital sentence, I'm not going to tell you. It's
19:27
Speaker 4: a very simple thing. Don't talk about He's not saying
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Speaker 4: particular things, but let's stop talking about Fred whenever we can.
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Speaker 2: Just as Elena Kagan's hypothetical was more along the lines
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Speaker 2: of how the defendant performed during his testimony.
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Speaker 3: Do you think that counsel can say, listen, I've been
19:47
Speaker 3: noticing that you've been mumbling, and you're also not making
19:52
Speaker 3: eye contact with the questioner, And it would just be
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Speaker 3: a good idea if you stopped mumbling and made eye
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Speaker 3: contact the the lawyer do that and then overnight recess.
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Speaker 2: My guest is former Manhattan prosecutor and criminal defense attorney
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Speaker 2: Paul Callan of counsel at Edelman and Edelman. Paul tell
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Speaker 2: us about the facts here.
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Speaker 5: The defendant, David Villarreal, was a meth addict allegedly who
20:17
Speaker 5: stabs his boyfriend to death, and he goes to trial,
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Speaker 5: and something happened in that trial, and it's something that's
20:25
Speaker 5: very common in the trial of civil and criminal cases,
20:29
Speaker 5: and that is he was on the witness stand testifying
20:33
Speaker 5: and the judge decided to break for the day. It
20:37
Speaker 5: was about one o'clock in the afternoon, and the judge
20:41
Speaker 5: gave an instruction, which defense attorneys have said was a
20:44
Speaker 5: limited instruction, which suggested that the defense attorney should not
20:49
Speaker 5: discuss testimony overnight with his clients because he was on
20:54
Speaker 5: the witness stand, and later on he's convicted, sentenced to
20:58
Speaker 5: sixty years in prison, and now he's seeking to reverse
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Speaker 5: the case, saying that instruction impeded his right to consult
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Speaker 5: with counsel pursue to the sixth Amendment.
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Speaker 2: So there was a lot of talk during the oral
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Speaker 2: arguments about coaching your client, or somebody called it managing
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Speaker 2: your client's testimony. Is there a clear line between what's
21:20
Speaker 2: permissible and what's impermissible when coaching a client or preparing
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Speaker 2: a client to testify.
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Speaker 5: Well, there's a line across and we call it subornation
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Speaker 5: of perjury if a lawyer goes too far in giving
21:37
Speaker 5: advice to his client about how he should shape his testimony.
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Speaker 5: And so lawyers always have to deal with this situation
21:45
Speaker 5: that they can't give advice that would constitute subornation of perjury.
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Speaker 5: Lawyers do, and it's their job to give a client
21:53
Speaker 5: advice though about how to testify and a witness stand,
21:56
Speaker 5: how to conduct himself on the witness stand, how to reactive.
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Speaker 5: There's an objection made in court all kinds of technical
22:03
Speaker 5: aspects of testimony like that. Clearly lawyers are allowed to
22:07
Speaker 5: give that kind of advice. But this is a situation
22:10
Speaker 5: that comes up all the time in both civil and
22:11
Speaker 5: criminal cases. When there's a recess in the case, the
22:14
Speaker 5: client wants to talk to the lawyer how am I doing?
22:17
Speaker 5: Am I doing okay on the witness stand, and the
22:19
Speaker 5: lawyer wants to encourage them and say, yes, yes, you're
22:22
Speaker 5: doing great, you know, or no, that was a stupid
22:26
Speaker 5: answer you gave, you know, try to listen to the
22:28
Speaker 5: questions that are being asked. So there are a variety
22:31
Speaker 5: of ways that lawyers approach this thing, so the courts
22:35
Speaker 5: really have gone back and forth on it. There are
22:38
Speaker 5: some court decisions saying that during the course of testimony,
22:42
Speaker 5: if there's a brief recess fifteen twenty minute recess, you
22:46
Speaker 5: can talk to your client, but you shouldn't discuss testimony
22:48
Speaker 5: during that time period. When there's a long adjournment like overnight,
22:53
Speaker 5: then it gets really tricky because really most lawyers think
22:56
Speaker 5: they shouldn't be discussing testimony with the client, But there
23:01
Speaker 5: may be other things that have to be discussed. Should
23:03
Speaker 5: I recommend a plead because the testimony is going so badly?
23:07
Speaker 5: Should I tell the witness that if he's going to
23:10
Speaker 5: stick with this kind of a story. We need another witness.
23:13
Speaker 5: You know, maybe he's got a friend who was refusing
23:15
Speaker 5: to testify, but now you say, you know, he's got
23:18
Speaker 5: to come in and testify given the way your testimony
23:20
Speaker 5: is going. So there's sort of an interreaction between testimony
23:24
Speaker 5: and even testimony that you're not trying to shape, and
23:28
Speaker 5: how it affects other aspects of the case as the
23:31
Speaker 5: case proceeds. So this is a really tricky question for lawyers,
23:35
Speaker 5: and this will be a closely watched case if the
23:37
Speaker 5: Supreme Court hands down a clear decision on it. That
23:41
Speaker 5: had been decisions in the past, but they've been sort
23:44
Speaker 5: of vague, and they've kind of gone both ways in
23:46
Speaker 5: terms of whether you can talk to a client while
23:49
Speaker 5: he's on the stand.
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Speaker 2: Paul, the Justice has posed all kinds of hypotheticals of
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Speaker 2: what a lawyer might say to a client during an
23:59
Speaker 2: extended and his testimony. Listen to the Chief Justice is
24:03
Speaker 2: hypothetical and tell me what you think.
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Speaker 4: And the defendant says something like, counsel, you remember when
24:10
Speaker 4: we were preparing for this, we both agreed we should
24:13
Speaker 4: try to get the jury to focus on Fred and
24:15
Speaker 4: whenever it's reasonable, I should mention Fred, and I've been
24:19
Speaker 4: doing that, and I notice every time I do that,
24:21
Speaker 4: you know, Jury number eight gets a big frown and
24:24
Speaker 4: shakes his head. He doesn't look to me like he
24:26
Speaker 4: likes the idea of talking about Fred at all. So
24:29
Speaker 4: I think that's a bad idea. Now, talking about Fred
24:32
Speaker 4: was your idea? Do you still think it's a good idea?
24:36
Speaker 4: Can the lawyer respond to that question?
24:39
Speaker 5: That's a tough one. That's a really tough one. And
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Speaker 5: as a matter of fact, that issue has come up
24:45
Speaker 5: as these cases have been briefed by the various parties
24:48
Speaker 5: because remember, the right to counsel in state cases only
24:53
Speaker 5: really was reserved to the states as well as the
24:55
Speaker 5: federal government in the fourteenth Amendment in the eighteen hundreds.
24:59
Speaker 5: Before that time, the law was, it was all federal law,
25:02
Speaker 5: and it was that you really could talk to your
25:05
Speaker 5: client while he was on the witness stand. Now, sometimes
25:08
Speaker 5: it was hard to do that because the clients were
25:10
Speaker 5: kept in page in the middle of the courtroom, so
25:13
Speaker 5: it would be very hard, you know, to send signals
25:15
Speaker 5: to him during court recesses if he's you know, sitting
25:19
Speaker 5: in a cell. Essentially that was a box in the
25:22
Speaker 5: middle of the courtroom. That's how some colonial courts were
25:24
Speaker 5: set up. So this really is an evolving case law.
25:28
Speaker 5: After the Fourteenth Amendment applied the sixth Amendment to the States,
25:33
Speaker 5: so and state courts and federal courts have gone in
25:37
Speaker 5: different directions and a lot of respects on this. Some
25:39
Speaker 5: of the state courts have said, it's okay, it's all right,
25:41
Speaker 5: you have a constitucial right to confer with your client
25:44
Speaker 5: at any point in time, and other courts have said,
25:47
Speaker 5: no reasonable restrictions are acceptable with this.
25:51
Speaker 2: Order of you know, you can talk to your client,
25:54
Speaker 2: but you can't discuss directly discuss the testimony. And the
25:57
Speaker 2: justices discussed this a lot because Yal's lawyer argued that
26:02
Speaker 2: that no direct discussion of testimony rule is unworkable in
26:06
Speaker 2: the real world because if you're discussing a plea agreement,
26:10
Speaker 2: for example, because you think that your client did lousey
26:13
Speaker 2: on the stand, and your client says, well, why should
26:16
Speaker 2: I take a plea, that it's very hard to draw
26:19
Speaker 2: a clear line in these cases.
26:23
Speaker 5: Villaryal's lawyer made a very compelling argument in that regard
26:26
Speaker 5: because so much of the client's testimony. I mean, if
26:30
Speaker 5: you put a defendant on the witness stand in a
26:32
Speaker 5: criminal case. His testimony is now the key evidence of
26:36
Speaker 5: the entire case, and if it triggers problems, that may
26:40
Speaker 5: cause you as a lawyer to have to go out
26:42
Speaker 5: and get another witness or maybe bring in some kind
26:46
Speaker 5: of an expert, because he's raised something about the impossibility
26:50
Speaker 5: of how a bullet was fired or was aimed when
26:52
Speaker 5: the murders shot was fired, or a stab wound it
26:55
Speaker 5: would be in this case. Yeah, the testimony interacts, from
26:59
Speaker 5: the legal standpoint, with all of the evidence in the case.
27:02
Speaker 5: So you restrict the lawyer's ability to talk to the client.
27:07
Speaker 5: You can't just keep it down to the testimony alone.
27:09
Speaker 5: Everything interacts with everything else. That's what build in the
27:12
Speaker 5: way his lawyers are arguing so that the conviction here
27:15
Speaker 5: will be reversed.
27:17
Speaker 2: Justice Elena Kagan asked this of Texas's lawyer. Do you
27:22
Speaker 2: think that counsel can say, listen, I've been noticing that
27:25
Speaker 2: you've been mumbling, and you're also not making eye contact
27:28
Speaker 2: with the questioner, and it would just be a good
27:31
Speaker 2: idea if you'd stop mumbling and made eye contact. Can
27:34
Speaker 2: the lawyer do that in an overnight recess? And the
27:38
Speaker 2: Texas's attorney said, no, I would consider that to be
27:41
Speaker 2: coaching their testimony as far as how you present yourself
27:45
Speaker 2: to the jury. Of course, he's arguing for Texas, so
27:49
Speaker 2: his view is very limited about what should be said.
27:53
Speaker 2: But do you think that that would be coaching.
27:55
Speaker 5: Well, whether it's coaching or not, I don't know. It
27:58
Speaker 5: probably is coaching, but in that kind of coaching is
28:01
Speaker 5: exactly what you get hired to do as a lawyer,
28:04
Speaker 5: to school your client in how he can present his
28:08
Speaker 5: truthful testimony in the best way possible to the jury.
28:12
Speaker 5: And I think most lawyers view this situation where a
28:17
Speaker 5: client is on the witness stand that they will not
28:20
Speaker 5: often hamper with the content of the testimony in their
28:25
Speaker 5: discussions with the client, but they may say, listen, stop
28:29
Speaker 5: looking down. It's making you look guilty. Look at a
28:32
Speaker 5: guy who's asking you the question, and it's okay to
28:35
Speaker 5: glance over at the jurors from time to time with
28:38
Speaker 5: your head up. And I mean, this just has to
28:40
Speaker 5: do with presentation of the testimony to the jury, as
28:44
Speaker 5: opposed to the truth or falsity of the testimony. And
28:47
Speaker 5: I think that's perfectly proper. That kind of instruction to
28:51
Speaker 5: a client during testimony.
28:52
Speaker 2: Of course, you can never tell for sure from oral
28:55
Speaker 2: arguments how the justices will rule, but it seemed to
28:59
Speaker 2: me like the defendant didn't have the votes here that
29:04
Speaker 2: the majority of the justice is were skeptical that not
29:08
Speaker 2: being able to talk to his counsel about his testimony
29:12
Speaker 2: during the overnight break violated his constitutional rights.
29:17
Speaker 5: Well, I'll tell you, And my suspicion is maybe they
29:21
Speaker 5: just want to stay away from the whole thing, because
29:24
Speaker 5: I suspect that the truth of the matter is there's
29:27
Speaker 5: nobody in that room at night when the lawyer is
29:30
Speaker 5: discussing the testimony with the client, and this rule is
29:35
Speaker 5: a really hard rule to enforce. I suppose you might
29:39
Speaker 5: have a lot more appeals in cases from defendants who
29:43
Speaker 5: would say I was on the stand and I needed
29:46
Speaker 5: advice and the lawyer refused to talk to me, and
29:50
Speaker 5: that's why I've been convicted, you know what Philip Reality
29:53
Speaker 5: is saying. So it's a touchy subject and it'll be
29:57
Speaker 5: interesting to see how the court rules are this thing
30:00
Speaker 5: case that trial lawyers across the country will be watching
30:03
Speaker 5: very very carefully because there are lots of diffuse it
30:07
Speaker 5: happens to the civil cases too. During depositions, you know, you're
30:10
Speaker 5: you have a civil case and the guys being deposed
30:13
Speaker 5: and then they wanted to take a break, and the
30:16
Speaker 5: lawyer says, well, don't talk to him during the break.
30:18
Speaker 5: And the lawyer says, well, you have no right to
30:20
Speaker 5: restrict what I can say to my client during the break.
30:22
Speaker 5: And I've seen fights among lawyers, oral arguments among lawyers
30:26
Speaker 5: at depositions about this very subject. So this one will
30:29
Speaker 5: spill over into civil practice as well. I think if
30:32
Speaker 5: they make a definitive ruling on the issue, Paul, is it.
30:36
Speaker 2: Is it an ethical rule that you shouldn't talk to
30:39
Speaker 2: your client during, you know, a break in testimony. Is
30:43
Speaker 2: there any real rule there?
30:45
Speaker 5: There are no ethical rules about it, other than of course,
30:50
Speaker 5: a lawyer cannot suborn perjury. So if you're giving the
30:55
Speaker 5: client advice, you know he's serving, say self defense in
30:59
Speaker 5: a case, and he tells you a story in which
31:02
Speaker 5: he's not under threat from the person he killed at all,
31:06
Speaker 5: and you say to him, well, you know it would
31:08
Speaker 5: help if you thought he was trying to strangle you
31:11
Speaker 5: when you pulled out the knife and started, you know,
31:13
Speaker 5: stabbing him, Well, that would be unethical, your supporting perjury.
31:17
Speaker 5: You're telling him tell a lie, say that you were
31:20
Speaker 5: in fear of your life, that's why you killed him.
31:22
Speaker 5: So you know, those are the only ethical rules that
31:25
Speaker 5: apply in terms of shaping testimony. By saying, be more
31:29
Speaker 5: polite when you're you know, you're yelling at the prosecutor.
31:33
Speaker 5: Don't do that. It makes you look aggressive and bad.
31:36
Speaker 5: I'm talking about stylistic questions and advice from the attorney,
31:41
Speaker 5: you know. I think that's something that all lawyers do
31:43
Speaker 5: to a certain extent with clients, and it's probably okay,
31:47
Speaker 5: and matter of fact, the courts may like it because
31:49
Speaker 5: if you get a long winded client, it won't give
31:51
Speaker 5: you a straight answer to a question. A lot of
31:54
Speaker 5: times the judges are quite happy if the client listens
31:57
Speaker 5: carefully to the question and answers it succinctly, as opposed
32:01
Speaker 5: to wandering around and telling all of these lengthy stories, which,
32:04
Speaker 5: by the way, just open up new avenues across examination
32:08
Speaker 5: for the prosecutor. You know, clients testifying is one of
32:12
Speaker 5: the most complex issues of criminal law and always will be,
32:15
Speaker 5: and I.
32:16
Speaker 2: Believe only justice Katanji Brown Jackson was a criminal defense
32:21
Speaker 2: lawyer who might have faced some of these problems. Justice
32:25
Speaker 2: Sonya Sotomayor is the only other trial lawyer on the court,
32:29
Speaker 2: and she was a Manhattan district attorney like you, Paul,
32:33
Speaker 2: thanks so much for joining me today. That's former Manhattan
32:36
Speaker 2: prosecutor and criminal defense attorney Paul Callen, and that's it
32:40
Speaker 2: for this edition of The Bloomberg Law Show. Remember you
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Speaker 2: week night at ten pm Wall Street Time. I'm June
33:01
Speaker 2: Grosso and you're listening to Bloomberg. Mhm.