Latest / Bloomberg Law / Weekend Law: Mangione Charges, Penny Acquittal & Sham Marriages

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Weekend Law: Mangione Charges, Penny Acquittal & Sham Marriages · Bloomberg Law

0:03
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
0:10
Speaker 2: I'll put you each in a room and I'll ask
0:12
Speaker 2: you every little question. They're a real couple would know
0:14
Speaker 2: about each other. Step two, I dig deeper. I look
0:18
Speaker 2: at your phone records. I talk to your neighbors, I
0:20
Speaker 2: interview your coworkers. If your answers don't match up at
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Speaker 2: every point, you will be deported indefinitely, and you, young man,
0:28
Speaker 2: will have committed a felony punishable by a fine of
0:31
Speaker 2: two hundred and fifty thousand dollars in a stay of
0:34
Speaker 2: five years. In federal present.
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Speaker 3: The proposal is just one of many rom coms where
0:41
Speaker 3: someone threatened with deportation enters into a sham marriage with
0:45
Speaker 3: a US citizen. The movies usually have happy endings, but
0:49
Speaker 3: a real life case before the Supreme Court that began
0:52
Speaker 3: nearly ten years ago still has no ending. The Justice
0:56
Speaker 3: is ruled unanimously that federal courts can't sit second guess
1:00
Speaker 3: the government revoking a visa due to a sham marriage.
1:04
Speaker 3: That's left to the discretion of the Department of Homeland Security,
1:08
Speaker 3: putting the couple back at square one. Joining me is
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Speaker 3: an expert in immigration law. And in this movie the Proposal,
1:15
Speaker 3: Leon Fresco apartnered with Holland and Knight. He was the
1:18
Speaker 3: head of the Office of Immigration Litigation in the Obama administration.
1:22
Speaker 3: So Leon tell us about the couple in this case.
1:25
Speaker 1: So the situation is actually pretty straightforward. There was a
1:28
Speaker 1: US citizen. The US citizen applied for a visa for
1:32
Speaker 1: the spouse to be able to get lawful permanent residents
1:36
Speaker 1: in the United States. The first part of the process,
1:39
Speaker 1: because there's two parts, one is is the marriage valid?
1:42
Speaker 1: And then the second is is everything fine in the
1:44
Speaker 1: background check? The first part is the marriage valid, that's
1:48
Speaker 1: what's called the visa petition that was approved. And so
1:52
Speaker 1: they thought, okay, we're all said, now we're on to
1:54
Speaker 1: the second part, the background check. Everything's going to be good.
1:57
Speaker 1: And then during the background check process, he said, you
2:00
Speaker 1: know what, we're going to revoke the initial approval because
2:04
Speaker 1: we didn't realize at the time that the foreign husband
2:07
Speaker 1: who they were trying to get the green card for
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Speaker 1: had actually been involved in a sham marriage where supposedly
2:14
Speaker 1: this guy had paid five thousand dollars to try to
2:17
Speaker 1: get a green card. And I don't know why USCIS
2:20
Speaker 1: didn't know it initially, but they figured it out the
2:22
Speaker 1: second time around, and so they revoked the petition. They
2:26
Speaker 1: then took an administrative appeal. They lost in the administrative appeal,
2:30
Speaker 1: so they tried to file a federal court case. And
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Speaker 1: the issue in the federal court case was is this
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Speaker 1: decision to revoke the initial approval something that you can
2:41
Speaker 1: actually review in the federal court.
2:44
Speaker 3: So there are mandatory and discretionary decisions, and discretionary decisions
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Speaker 3: can't be reviewed by a court.
2:53
Speaker 1: Right, there's a lot of things that the government is
2:56
Speaker 1: very concerned that if you start giving judicial review for
3:00
Speaker 1: or there will be thousands, if not hundreds of thousands
3:03
Speaker 1: of federal court cases. So the Congress writes laws that
3:06
Speaker 1: say here's what we're gonna do. We are gonna say
3:10
Speaker 1: that in certain situations, the agencies that deal with immigrants
3:14
Speaker 1: will get the final word, meaning sometimes they can be nice,
3:18
Speaker 1: sometimes they can be mean, but whatever they decide, they
3:21
Speaker 1: will get the final word because there's no way we
3:23
Speaker 1: can possibly allow thousands, if not hundreds of thousands of
3:27
Speaker 1: cases to challenge these agencies and what they're saying. There's
3:31
Speaker 1: other times that the statute say, if you make a decision,
3:35
Speaker 1: you can get review. And so the question is, does
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Speaker 1: a particular statute in any given instance give the final
3:42
Speaker 1: discretionary word to the agency so that you can't review it.
3:46
Speaker 1: Or if the decision is one that has to be
3:49
Speaker 1: made yes or no and there's no discretion, you either
3:52
Speaker 1: have to decide, for instance, is the person qualified under
3:57
Speaker 1: the visa to do it work? So that's either a
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Speaker 1: yes or no. And if you say yes, that's finement.
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Speaker 1: You say no, you can get review of that. I
4:05
Speaker 1: am qualified. I know they said that I'm not, but
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Speaker 1: I am. That's the kind of thing where review is available.
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Speaker 1: But if the Congress says no, this is a discretionary decision,
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Speaker 1: we want it to be decided by the agency, and
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Speaker 1: they can either be nice or mean, but it's up
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Speaker 1: to them, then they're the last word. You cannot go
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Speaker 1: to federal court.
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Speaker 3: So why did the Supreme Court here decide that revoking
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Speaker 3: the visa is a discretionary decision.
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Speaker 1: The statute says if you come across a sham marriage
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Speaker 1: in any part of this process, you can revoke it
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Speaker 1: for good and sufficient cause. But because it says you
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Speaker 1: can revoke and it doesn't say you have to revoke.
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Speaker 1: The Supreme Court said, hey, that's again a discretionary decision
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Speaker 1: that either the agency can decide to let it slide,
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Speaker 1: even if there was a sham marriage, or they can
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Speaker 1: decide to revoke the petition. But in either case that's
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Speaker 1: aary decision. And so because of that, they say that
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Speaker 1: that's then not a decision that the federal courts can review.
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Speaker 1: And that was a nothing, rare, nine nothing Supreme Court
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Speaker 1: decision that was actually written by Justice Jackson, who's considered
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Speaker 1: probably to be the most of the compassionate judges toward immigrants.
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Speaker 4: On the court.
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Speaker 1: Even she said that this is the kind of discretionary
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Speaker 1: decision that is not reviewable in this situation.
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Speaker 3: I thought that sham marriages barred people from remaining in
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Speaker 3: the country legally, that if they found a sham marriage,
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Speaker 3: you were out.
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Speaker 1: So interestingly, here's how that worked.
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Speaker 4: If you apply on step one.
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Speaker 1: So you say I'm a US citizen I want to
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Speaker 1: marry a foreign nationalist, you're in step one of the process.
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Speaker 1: If USCIS encounters that there was a sham marriage.
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Speaker 4: Either the US citizen.
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Speaker 1: Had been in a sham marriage in the PIP or
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Speaker 1: the foreign national had been in a sham marriage in
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Speaker 1: the pipe, they must deny that the ting, and that
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Speaker 1: petition therefore can be reviewed in federal court. But this
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Speaker 1: is not how that happened. This was after the fact
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Speaker 1: USCIS find out that there was an error, do you
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Speaker 1: have to revoke it? And what the Supreme Court said
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Speaker 1: was nobody says in this statute that you have to
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Speaker 1: revoke it. You could just let it slide. Now there's
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Speaker 1: evidence in this case, and just as Jackson cites to it,
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Speaker 1: that says, well, USCIS never lets it slide. They never,
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Speaker 1: They never are nice to people in this situation. They
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Speaker 1: always revoke every single case where they see that there
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Speaker 1: was a sham marriage involved. But what Justice Jackson says
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Speaker 1: is who cares. That doesn't matter what they actually do.
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Speaker 1: What matters is whether the legislature gives.
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Speaker 4: Them the discretion to overlook.
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Speaker 1: It or not. And because the language of the statutes
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Speaker 1: give the discretion to the immigration agency to overlook a
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Speaker 1: sham marriage if it is found after the fact after
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Speaker 1: an approval, not aforehand. But if it is found after
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Speaker 1: the fact, then that's considered a discretionary decision. And so
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Speaker 1: the decision to revoke, which is discretionary then cannot be reviewed.
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Speaker 3: This case seems like a wasted effort because if the
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Speaker 3: petition is revoked, the couple can just file a new
7:18
Speaker 3: visa application.
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Speaker 1: In this marriage context, you can always just apply again,
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Speaker 1: and if they deny you, now that they know about
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Speaker 1: this Shen marriage, you can get the federal court review
7:29
Speaker 1: you were worried about. And in fact, the plaintiff in
7:32
Speaker 1: this case is literally in the middle of this, So
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Speaker 1: it just seemed like a why are you complaining case
7:38
Speaker 1: at the end of the day, since you actually can
7:40
Speaker 1: get the federal court review that you want by simply
7:43
Speaker 1: putting in a brand new application, and there's no bar
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Speaker 1: in this instance to putting in a brand new application.
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Speaker 1: So that's why I think you end up getting the
7:52
Speaker 1: nine zero decision is because in the end, yes, this
7:57
Speaker 1: will close out a way that theoretically could have been
8:00
Speaker 1: available for a revocation of a marriage case. But in
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Speaker 1: the end, what it makes clear is that if you
8:07
Speaker 1: are in this exact situation where your marriage was approved
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Speaker 1: for immigration green card purposes, but now it's been revoked
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Speaker 1: on step two when you're going through the background check process,
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Speaker 1: that all you have to do is file step one
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Speaker 1: again and they'll have to deny it because now they
8:24
Speaker 1: know about the sham marriage. And since they have to
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Speaker 1: deny it, that's what you'll be able to get the
8:30
Speaker 1: review of that denial.
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Speaker 3: So then did this couple actually win the Supreme Court case,
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Speaker 3: because they're eventually going to get the court review they want.
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Speaker 1: But she didn't win the case from the standpoint of
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Speaker 1: the relief she actually wanted, which was to immediately be
8:46
Speaker 1: able to get a decision right now as to whether
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Speaker 1: that was really a sham marriage. So she can't get that,
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Speaker 1: and she has to restart the process, like you've said,
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Speaker 1: And so it's a non ultimate but it's a loss
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Speaker 1: in this forum, in these proceedings for what she wanted, Leon.
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Speaker 3: I mean, when the federal court reviews it, they're going
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Speaker 3: to see there was a sham marriage, correct, So the
9:11
Speaker 3: judge will rule against the couple. So what's the point
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Speaker 3: here Is it just to delay the inevitable.
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Speaker 1: So sometimes the hope is this that occasionally what will
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Speaker 1: happen is so you'll have the uscis the Immigration Service,
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Speaker 1: We'll say that there was a sham marriage, and then
9:27
Speaker 1: you'll have an administrative appeal. But it goes to people
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Speaker 1: who are generally inclined to be deferential to the agency,
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Speaker 1: and so they'll say it was a sham marriage. But
9:39
Speaker 1: you hope you can get a federal court judge who
9:42
Speaker 1: maybe looks a little bit more askance at the government
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Speaker 1: that says, you know, what, why are you viewing things
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Speaker 1: in such a skeptical, cynical light? You know, I know
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Speaker 1: there was five thousand dollars exchange, but that was for
9:55
Speaker 1: love or.
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Speaker 4: Something, you know, who knows.
9:57
Speaker 1: And so you get one of these judges who baby
10:00
Speaker 1: doesn't really trust the government so much, and maybe you
10:03
Speaker 1: could get a decision that's better than you could have
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Speaker 1: ever hoped for. And so that's what they're looking for,
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Speaker 1: is that kind of hail mayor is here in this situation.
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Speaker 3: What did Justice Jackson mean when she said that Congress
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Speaker 3: created room for mercy in the process.
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Speaker 1: Well, the mercy that she really meant was that the agency,
10:23
Speaker 1: if they wanted to overlook the sham marriage, they theoretically
10:26
Speaker 1: could have overlooked the sham marriage. So that's the real
10:30
Speaker 1: mercy that she meant. But she also meant that there
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Speaker 1: is this second out year in this particular fact pattern
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Speaker 1: where in the marriage issue, you can go in and
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Speaker 1: you can actually restart and do a new application and
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Speaker 1: then get the federal court review that you want.
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Speaker 3: I'm curious, because there are lots of movies about sham
10:49
Speaker 3: marriages for green court purposes. Are there actually a lot
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Speaker 3: of sham marriages?
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Speaker 1: So here's what's very interesting is what is a marriage?
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Speaker 1: And the famous Judge Posner has a decision that really
11:02
Speaker 1: goes into this, which is, you know, talk about movies.
11:04
Speaker 1: One of my favorite ones of this variety is the
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Speaker 1: one with Ryan Reynolds and Sandra Bullock called the Proposal Yes,
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Speaker 1: where he says at the end, I want to marry
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Speaker 1: you so that I can date you.
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Speaker 4: And the question is would that be a.
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Speaker 1: Legitimate purpose for an immigration marriage, because in the end
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Speaker 1: you are still professing some sort of love there. And
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Speaker 1: so what Judge Posner said is this is not exactly
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Speaker 1: the law, but I find it very persuasive, and I
11:31
Speaker 1: keep trying to convince the agencies that this is the
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Speaker 1: real issue, and they're almost there. Is this did money
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Speaker 1: change hands? Because if money changed hands, that's a sham marriage.
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Speaker 1: But any other kind of marriage, you know, I go
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Speaker 1: to Harvard and my wife goes to Stanford. We love
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Speaker 1: each other, but we don't live together. Non immigration marriages
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Speaker 1: that are just like that. And so that's where it
11:55
Speaker 1: gets super complicated. And so the issue is, I say,
12:00
Speaker 1: did Bunny change hands? And that really is the main
12:02
Speaker 1: thing they look for, but they also do look are
12:05
Speaker 1: you living together? And if not, why are you not
12:08
Speaker 1: living together? And you know, is their constant communication, is
12:12
Speaker 1: their joint assets. All of these things and those areas
12:17
Speaker 1: sometimes are not conventional in certain marriages, but they still
12:20
Speaker 1: want to try to enforce those conventions on these immigration marriages.
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Speaker 3: And that's just what the immigration officer considered in the proposal.
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Speaker 3: Thanks so much, Leon. That's Leon Fresco of Holland and Knight.
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Speaker 3: Coming up next on the Bloomberg Law Show. Marine Vet
12:36
Speaker 3: Daniel Petty was acquitted in the subway chocol death of
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Speaker 3: Jordan Neely, but now he's facing a civil lawsuit and
12:44
Speaker 3: the case against Luigi Mangioni for the shooting death of
12:48
Speaker 3: United Healthcare CEO Brian Thompson. I'm June Grosso and you're
12:52
Speaker 3: listening to Bloomberg. Both applause and anger erupted in a
12:56
Speaker 3: Manhattan courtroom on Monday when a jury announced its verdict
13:00
Speaker 3: of not guilty in the trial of Daniel Penny for
13:03
Speaker 3: the choke hold death of Jordan Neely on a subway
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Speaker 3: last year. It was a reflection of how the case
13:09
Speaker 3: divided the nation, with some hailing Penny as a hero
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Speaker 3: for trying to subdue a homeless man who was threatening
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Speaker 3: subway writers, while others saw the former marine as a
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Speaker 3: white vigilante who choked a black man to death. Neelie's
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Speaker 3: father cursed in anger when the verdict was announced and
13:26
Speaker 3: had to be removed from the courtroom.
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Speaker 4: He mi to macaur no, here's something like that.
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Speaker 3: But in an interview with Fox, Penny said he would
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Speaker 3: do the same thing again if he faced a similar
13:39
Speaker 3: situation in the future.
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Speaker 5: I would not be able to live with myself if
13:45
Speaker 5: I didn't do anything in that situation and someone got hurt,
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Speaker 5: I would feel guilty for the rest of my life.
13:53
Speaker 5: And I think I'm in a position and all people,
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Speaker 5: if they're in a position help should always help.
14:01
Speaker 3: Joining me is Palm Beach County State Attorney Dave Ahrenberg.
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Speaker 3: Dave the jury came back last Friday after four days
14:08
Speaker 3: of deliberating, and said they were deadlocked on the top
14:11
Speaker 3: charge of manslaughter. Over the course of the deliberations. The
14:15
Speaker 3: jury had asked to rewatch the bystander videos of Penny
14:19
Speaker 3: restraining Neelie, the officer's bodycam videos, and video of Penny's
14:25
Speaker 3: interview with police detectives. They also wanted to rehear the
14:29
Speaker 3: medical examiner's testimony about issuing a death certificate before Neale's
14:35
Speaker 3: full toxicology reports came in. Can you tell from those
14:39
Speaker 3: requests what they were likely hung up on.
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Speaker 6: It's really the overall narrative, and it was a question
14:46
Speaker 6: whether he acted recklessly, whether he went too far, And
14:50
Speaker 6: even with the lesser charge of negligent homicide, you only
14:54
Speaker 6: need to act carelessly. So they really wanted to know
14:58
Speaker 6: if this guy just went too far, and they wanted
15:02
Speaker 6: to hear from bystanders. They want to see video, and
15:05
Speaker 6: by all appearances, it looked like Daniel Penny was a
15:08
Speaker 6: good samaritan and he was there to hold Jordan Neely
15:13
Speaker 6: down in that choke hold. It depends how you define
15:16
Speaker 6: it until the threat abated, and was it too long?
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Speaker 6: That was the question for the jury, and the jury
15:23
Speaker 6: ultimately said, if it's too long or not, we can't
15:26
Speaker 6: make a clear delineation beyond a reasonable doubt, and so
15:30
Speaker 6: therefore not guilty.
15:31
Speaker 3: After the jury said they were deadlocked on the top charge,
15:35
Speaker 3: the judge granted the prosecution's motion to drop that charge
15:40
Speaker 3: and allow the jury to deliberate on the lesser included
15:42
Speaker 3: charge of criminally negligent homicide. The defense had asked for
15:46
Speaker 3: a mistrial, saying this could lead to a compromise verdict.
15:51
Speaker 3: Do you think the judge should have declared a mistrial.
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Speaker 6: No, because it is the prerogative of prosecutors to seek
15:57
Speaker 6: a verdict on the lesser counts, And just because you
16:01
Speaker 6: can't come up with a verdict on the biggest count
16:04
Speaker 6: manslaughter in this case, doesn't mean that you can't look
16:07
Speaker 6: to door B. Because prosecutors wanted any type of conviction
16:12
Speaker 6: in this case, and quite frankly, I think this case
16:15
Speaker 6: probably should not have been brought because I think going
16:18
Speaker 6: into it, prosecutors had to know it was very unlikely
16:21
Speaker 6: that they would get a conviction beyond a reasonable doubt.
16:23
Speaker 6: After all, jurors take the subway too, and all of
16:27
Speaker 6: us have had experiences with someone with untreated mental illness
16:31
Speaker 6: scaring people on the subway, so I thought this was
16:33
Speaker 6: an uphill battle. But I do say that the prosecutors
16:37
Speaker 6: should have been able to seek a verdict on the
16:39
Speaker 6: lesser charge, and they were.
16:41
Speaker 3: I wasn't surprised when the jury said they were deadlocked.
16:45
Speaker 3: But here's what did surprise me. The jury deliberates for
16:48
Speaker 3: four days on the manslaughter charge, the top charge, and
16:51
Speaker 3: there are one or more holdouts. They can't reach a verdict,
16:55
Speaker 3: which of course has to be unanimous. They come back
16:58
Speaker 3: on Monday and start deliberating the lesser charge, and in
17:02
Speaker 3: one hour they reach a not guilty verdict. What happened
17:05
Speaker 3: to the holdouts?
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Speaker 6: June? You hit the nail on the head. This was
17:09
Speaker 6: the biggest head scratcher, because they took a while hand
17:13
Speaker 6: ringing over the largest charge, the most difficult charge, the
17:16
Speaker 6: manslaughter charge, and after there were holdouts and they couldn't
17:20
Speaker 6: come to a verdict, you would think that they would
17:22
Speaker 6: then deliberate justice extensively with just as many holdouts on
17:27
Speaker 6: the lesser charge. I mean, the lesser charge is much
17:29
Speaker 6: easier to convict Penny on. But yet they quitted him
17:32
Speaker 6: on that one very quickly, and I think the reason
17:34
Speaker 6: is dure fatigue. Dur fatigue is a real thing. They
17:38
Speaker 6: had the weekend to think about it, they came back,
17:41
Speaker 6: and the holdouts, the ones who could not equit Daniel
17:45
Speaker 6: Penny on the biggest charge, manslaughter, decided it wasn't worth
17:49
Speaker 6: a fight anymore and let's.
17:51
Speaker 4: Just let him go.
17:52
Speaker 3: I understand that when the judge told the jurors on Friday,
17:55
Speaker 3: you're going to come back on Monday and start deliberating
17:58
Speaker 3: on the lesser charge, one of the jurors was shaking
18:01
Speaker 3: his head back and forth. I mean, what Jery wants
18:04
Speaker 3: to come back after a weekend. That's why you have
18:06
Speaker 3: so many Friday verdicts. So, Dave, the defense did raise
18:09
Speaker 3: a lot of questions here about the cause of death,
18:13
Speaker 3: the medical examiner's report, etc. Do you think that's what
18:17
Speaker 3: convinced the jurors or was it just the fact that
18:20
Speaker 3: you have this guy who started out with good intentions.
18:23
Speaker 3: Even the prosecutor admitted that, and right things got away
18:26
Speaker 3: from him.
18:27
Speaker 6: Even the prosecution said that Daniel Penny acted with the
18:31
Speaker 6: right mindset. He was acting in self defense. This was
18:34
Speaker 6: not a murder case. This is a case at some
18:36
Speaker 6: point when perhaps Jordan Neely stopped breathing, although that was
18:40
Speaker 6: a big bone of contention when that happened, or perhaps
18:42
Speaker 6: when the subway cars opened at the station, that Daniel
18:46
Speaker 6: Penny had an obligation to release the choke hold, and
18:49
Speaker 6: that's where he crossed the line. But see, that's a
18:51
Speaker 6: very difficult question for jurors, is to make that distinction
18:55
Speaker 6: between heroism and being a killer. So it's tough for
19:01
Speaker 6: jurors beyond a reasonable doubt to find that delineation. And
19:05
Speaker 6: I think that's why this case was always going to
19:07
Speaker 6: be an uphill battle for prosecutors, because no one doubted
19:10
Speaker 6: that Journey was threatening people on the train, scared people.
19:12
Speaker 6: Even the witnesses for the prosecution that yeah, we were
19:16
Speaker 6: scared by him. The question is at what point do
19:19
Speaker 6: you cross the line and go too far? And to
19:22
Speaker 6: ask a jury to find beyond a reasonable doubt that
19:25
Speaker 6: someone went too far, it's so hard when they probably
19:29
Speaker 6: have taken the subways, when they have been scared themselves,
19:32
Speaker 6: and when they probably wish at some point in their
19:34
Speaker 6: life that a Daniel Penny had stood up to protect them.
19:37
Speaker 3: The legal system is not done with Penny. Jordan Neely's
19:41
Speaker 3: father is suing him for causing Neely's death through negligence, carelessness,
19:46
Speaker 3: and recklessness. Of course, the burden of proof is much
19:50
Speaker 3: lower in a civil case and only five out of
19:53
Speaker 3: six jurors have to agree on a verdict.
19:55
Speaker 6: Well, it's a much easier case than civil court because
19:58
Speaker 6: the civil standard is not being a reasonable doubt, it's
20:01
Speaker 6: by a preponderance of the evidence. Is it more likely
20:03
Speaker 6: than not that this occurred? And so yes, it is
20:06
Speaker 6: a much better case against Daniel Penny civilly than criminally.
20:10
Speaker 6: I'm not surprised that it has brought. It is one way
20:12
Speaker 6: for the family of Jordan needed to obtain a measure
20:15
Speaker 6: of justice in their eyes. I don't know which way
20:18
Speaker 6: it will go, but definitely is a better chance. Now,
20:19
Speaker 6: if Daniel Penny had been convicted, then that lawsuit would
20:23
Speaker 6: have been much much easier, because once you've been proven
20:26
Speaker 6: beyond a reasonable doubt of acting carelessly or recklessly, then
20:30
Speaker 6: that comes into play in the civil court and you're
20:33
Speaker 6: almost certain of winning a civil judgment.
20:35
Speaker 3: As you know, Dave, there was a lot of pressure
20:38
Speaker 3: on Manhattan DA Alvin Bragg to bring charges against Penny,
20:43
Speaker 3: and his defense lawyers are considering bringing a malicious prosecution
20:46
Speaker 3: case against the DA. They say the DA blurred the
20:49
Speaker 3: ethical lines in handling the case and colluded with the
20:53
Speaker 3: Medical Examiner's office. How tough are malicious prosecution case is
20:57
Speaker 3: to win?
20:58
Speaker 4: Oh? Those are very hard.
21:00
Speaker 6: I mean you really have to prove some bad faith
21:02
Speaker 6: and that hardly ever works in this case. If the
21:06
Speaker 6: DA was motivated by political pressure, that's still not malicious
21:09
Speaker 6: prosecution as long as you have the evidence. And as
21:11
Speaker 6: I said, there was enough evidence here at least to
21:13
Speaker 6: file the charge, at least the seeking indictment. And yes,
21:16
Speaker 6: you could have been convicted of one of these charges,
21:18
Speaker 6: maybe just a lesser charge based on the evidence. But
21:20
Speaker 6: because of the lived experiences of the jurors, I thought
21:23
Speaker 6: that that would never happen. And so, you know, both sides.
21:26
Speaker 4: Can be right about this.
21:27
Speaker 6: The defense can be right that this case should never
21:29
Speaker 6: have been brought. At the same time, the prosecution can
21:31
Speaker 6: be right that there was enough evidence to bring the case.
21:34
Speaker 6: Both sides can be true on this one. Now, this
21:36
Speaker 6: was a sign of the times. This case reflected a
21:39
Speaker 6: larger split amongst the public about issues of crime and
21:42
Speaker 6: race and homelessness and mental illness. And in the end,
21:46
Speaker 6: because there was such a split, because there was such
21:48
Speaker 6: a controversy, you were never going to get a unanimous
21:50
Speaker 6: jury a twelve person jury to decide beyond a reasonable
21:54
Speaker 6: doubt that Daniel Penny committed manslaughter maybe a lesser crime, possibly,
21:59
Speaker 6: but even that was too high of a burden for
22:01
Speaker 6: this jury.
22:02
Speaker 3: The Manhattan DA is involved in another case that seems
22:05
Speaker 3: to have captured the attention of the public, the shooting
22:08
Speaker 3: of United Healthcare CEO Brian Thompson on a New York
22:12
Speaker 3: City street on December twenty fourth. Twenty six year old
22:16
Speaker 3: Luigi Mangioni has been charged with second degree murder, and
22:20
Speaker 3: DA Bragg has said he finds the public's fascination with
22:23
Speaker 3: mangione disturbing.
22:25
Speaker 7: Celebrating murders abhorred, you know, for me, sit across the
22:33
Speaker 7: table from families who've had a loved one killed, and
22:41
Speaker 7: to think of people.
22:43
Speaker 3: Celebrating that Mangioni was arrested in Pennsylvania and he's fighting
22:48
Speaker 3: extradition to New York. But it's going to happen, isn't it.
22:52
Speaker 6: It's inevitable. They're just forestalling the obvious. And there have
22:55
Speaker 6: been a lot of theories out there. Maybe one reason
22:58
Speaker 6: is he wants to avoid Riker's prison is long as possible,
23:01
Speaker 6: but he's going to get there. Or perhaps they want
23:03
Speaker 6: to force prosecutors to give up extra evidence that they
23:06
Speaker 6: wouldn't be entitled to otherwise at a hearing in Pennsylvania.
23:09
Speaker 6: But really, extradition hearings are so easy. The only main
23:11
Speaker 6: argument is is this the guy who is described? And
23:15
Speaker 6: the problem cause after David, do you have the right
23:17
Speaker 6: person or is it mistaken identity? Well, it's clearly not
23:19
Speaker 6: mistaken identity. So this is going to happen. He's going
23:22
Speaker 6: to be extradited. They're just delaying the inevitable.
23:24
Speaker 3: There seems to be a lot of evidence against him already.
23:28
Speaker 3: They reportedly have ballistics from the gun he was carrying,
23:32
Speaker 3: that Matt shell casing's found at the scene. They have
23:35
Speaker 3: his manifesto, which speaks to his motive. It's early, but
23:39
Speaker 3: do you see any defenses here?
23:41
Speaker 6: I think the only real defense would be that Mangioni
23:45
Speaker 6: acted with severe emotional disservants, that he was so upset
23:49
Speaker 6: about the way the insurance companies treated him in his family,
23:52
Speaker 6: that this could be a manslaughter case and not a
23:54
Speaker 6: murder case. Now I would disagree with that. I think
23:56
Speaker 6: there's clear murder. I think it should be premeditated murder.
23:59
Speaker 6: But that to me will be the best defense to
24:02
Speaker 6: try to get a conviction on a lesser count that
24:04
Speaker 6: will allow them to get out of prison one day. Now.
24:07
Speaker 6: As far as another potential defense, there's what you call
24:09
Speaker 6: jury nullification. Jury nullification is when the jurors drew the
24:13
Speaker 6: evidence and see the law and disregard it. Instead of
24:17
Speaker 6: doing what they're told by the judge, they go their
24:19
Speaker 6: own way because they have sympathy for the defendant. They're
24:21
Speaker 6: not supposed to do it, but it happens. It's a
24:23
Speaker 6: prosecutor's worst nightmare. That is a possibility in a case
24:27
Speaker 6: like this, where there's so many emotions about it and
24:30
Speaker 6: so many hard feelings and frustrations towards the insurance industry.
24:34
Speaker 3: If the jury is anything like the Internet, it seems
24:37
Speaker 3: like jury nullification is a possibility because the Internet has
24:41
Speaker 3: exploded with all kinds of support for him.
24:44
Speaker 6: And as a prosecutor, it's disappointing and it shows you
24:46
Speaker 6: this is an age we're living it in the age
24:48
Speaker 6: of impunity, where you can say what you want, you
24:50
Speaker 6: can do what you want, and nothing.
24:52
Speaker 4: Sticks to you.
24:53
Speaker 6: You can get elected no matter what your past, you
24:55
Speaker 6: can be appointed no matter what you've done, and it's
24:59
Speaker 6: a reflection where we are, where people are treating this
25:02
Speaker 6: guy as a hero, when it's not a very courageous
25:06
Speaker 6: thing to put on a mask, lie in wait for
25:09
Speaker 6: an unarmed man, and then shoot him in the back
25:12
Speaker 6: and then run away. Not exactly captain courage. So he's
25:15
Speaker 6: not someone who should be raised up and lionized.
25:18
Speaker 3: We'll see if the Internet loses its fascination with him
25:22
Speaker 3: once more details come out. Thanks for your insights, Dave.
25:25
Speaker 3: That's Palm Beach County State Attorney Dave Arenberg.
25:29
Speaker 8: The board was not heedless of environmental effects here. It
25:32
Speaker 8: consulted with dozens of agencies, considered every proximate effect, and
25:37
Speaker 8: ordered ninety one mitigation measures. Eighty eight miles of track
25:42
Speaker 8: should not require more than thirty six hundred pages of
25:45
Speaker 8: environmental analysis.
25:46
Speaker 3: Former US Solicitor General Paul Clement argued that federal regulators
25:51
Speaker 3: had done enough in considering the environmental impact of a
25:55
Speaker 3: proposed eighty eight mile railway in Utah. Under the National
25:59
Speaker 3: Environmvironmental Policy Act, or NEPA, regulators are required to analyze
26:04
Speaker 3: the reasonably foreseeable environmental impacts before approving infrastructure projects. But
26:11
Speaker 3: justice is across the ideological spectrum struggled with the test
26:15
Speaker 3: for determining when upstream and downstream effects should be considered
26:20
Speaker 3: in environmental impact studies.
26:22
Speaker 9: Here's this eighty eight miles of flying and railroads are
26:26
Speaker 9: going to cross it, and wildfires are going to start
26:30
Speaker 9: as a result. Is that within time and space?
26:34
Speaker 7: But how far down line or upstream or downstream should
26:39
Speaker 7: you look?
26:41
Speaker 4: I mean, what are you going to do?
26:42
Speaker 10: You're going to say, Okay, I've identified this possible issue,
26:47
Speaker 10: but I think it's too far away.
26:50
Speaker 6: Most environmental effects, like effects on wetlands, are going to
26:56
Speaker 6: be sometimes remote in time and geography.
27:00
Speaker 3: Men did admit that his proposed test wasn't an easy one.
27:04
Speaker 8: If I could give you a ten word test that
27:06
Speaker 8: took care of every hard case, I mean, you know,
27:09
Speaker 8: they give me tenure at Harvard, but.
27:12
Speaker 1: I think you know having I'm sure they give you
27:14
Speaker 1: that anyway.
27:16
Speaker 3: That last comment coming from Justice Elena Kagan, who was
27:20
Speaker 3: once the dean of Harvard Law School, joined me as
27:23
Speaker 3: an expert in environmental law. Pat Parento, a professor at
27:27
Speaker 3: the Vermont Law and Graduate School, that first tell us
27:30
Speaker 3: about the environmental concerns here.
27:33
Speaker 10: So this case involves a proposed eighty eight mile rail
27:39
Speaker 10: link in the Uinta basin of Utah, which is huge.
27:44
Speaker 10: In fact, it's as big as Maryland, and it's loaded
27:47
Speaker 10: with all kinds of fossil fuels, including what's called waxy
27:52
Speaker 10: crude oil. I hadn't heard about that term before, but
27:55
Speaker 10: that's the product that they want to ship on this
27:57
Speaker 10: rail line. And the Surface Transportation Board, which is a
28:01
Speaker 10: federal agency within the Department of Transportation, has the authority
28:04
Speaker 10: to license or approve construction of this link, which will
28:09
Speaker 10: take the oil from the Uinta basein east and connect
28:13
Speaker 10: it with the national railroad network and take it all
28:16
Speaker 10: the way to the Gulf Coast where it will be
28:19
Speaker 10: refined into various products. So the concerns here are the
28:24
Speaker 10: drilling and the extraction that's going to occur as a
28:28
Speaker 10: result of providing this critical link. Without this railroad, this
28:32
Speaker 10: oil reserve couldn't be exploited. So it is a major
28:35
Speaker 10: resource with economic value and some jobs undoubtedly and income
28:40
Speaker 10: to Utah and the county. The Ute tribe of Indians
28:44
Speaker 10: is involved in this, and they have concerns about the drilling,
28:48
Speaker 10: which will potentially impact some of their resources. And there's
28:51
Speaker 10: concerns about spills, which are inevitable when you're moving oil
28:55
Speaker 10: by rail, there's always either chronic low level spills, leakages,
29:00
Speaker 10: or in some cases, of course worse than that, derailments,
29:03
Speaker 10: and we've seen that. But then of course downstream there's
29:06
Speaker 10: concerns about burning all of this spoiled duh, and the
29:10
Speaker 10: impacts on climate change, but also impacts on the communities
29:14
Speaker 10: around the refineries in the Gulf Coast Fort Arthur, Texas
29:18
Speaker 10: being as primary focus of this. So a variety of
29:22
Speaker 10: environmental issues typical of a major infrastructure project like this,
29:27
Speaker 10: and tell.
29:28
Speaker 3: Us about the legal issue around the environmental impact study
29:33
Speaker 3: for this railway.
29:34
Speaker 10: So this has to do with the scope of the
29:37
Speaker 10: environmental impact statement that the Surface Transportation Board prepared for
29:42
Speaker 10: this project, and actually STB as it's called, get you
29:47
Speaker 10: know what you might consider a pretty thorough job. I mean,
29:50
Speaker 10: it amounts to literally thousands of pages of analysis when
29:55
Speaker 10: you look at the whole administrative record. And they did
29:58
Speaker 10: look at these upstream impacts of drilling and the downstream
30:03
Speaker 10: impacts of potential spills and the refinery, but they only
30:07
Speaker 10: did so to a certain level. And the DC circuit
30:11
Speaker 10: when this came to the DC Circuit for Review said,
30:14
Speaker 10: you know, STB, you get an okay job, but not
30:18
Speaker 10: good enough. You needed to delve more deeply into these
30:21
Speaker 10: upstream downstream issues than you did. So what it comes
30:25
Speaker 10: down to is how much analysis does NEPA require when
30:29
Speaker 10: you have an eighty eight mile project that is approved
30:32
Speaker 10: by this agency DSTB. And how far beyond.
30:36
Speaker 4: The footprint, if you will, of the.
30:38
Speaker 10: Project does NEPA require you to go when you're analyzing
30:43
Speaker 10: these more remote in time and distance problems. And that
30:48
Speaker 10: was the focus of the argument before the Supreme Court.
30:51
Speaker 3: Was there an answer to what kind of test would
30:54
Speaker 3: work here? I mean, did anyone have that answer?
30:57
Speaker 4: Yes?
30:58
Speaker 10: Paul Clement, who's a farmer Listitor General of the United
31:01
Speaker 10: States for a while, so he's a.
31:02
Speaker 4: Very accomplished, seasoned Supreme.
31:05
Speaker 10: Court litigator, and frankly did a terrific job representing his clients,
31:09
Speaker 10: of course, who want to develop these oil reserves, and
31:12
Speaker 10: his tests which he offered and explained over and over again.
31:15
Speaker 4: To the court.
31:16
Speaker 10: He was up there for almost an hour being questioned
31:18
Speaker 10: by almost everybody on the bench, and his test was
31:21
Speaker 10: the following number one, you do take into account how
31:25
Speaker 10: remote in time and space. Are the impacts that you're
31:29
Speaker 10: talking about?
31:30
Speaker 4: Number one?
31:31
Speaker 10: And number two, how many of those impacts are actually
31:35
Speaker 10: within the jurisdiction and authority of the agency in question,
31:39
Speaker 10: namely STV. His answer to both of those was a,
31:43
Speaker 10: the impacts, particularly the refinery impacts, which are five hundred
31:46
Speaker 10: miles away or more, are way too remote in time
31:50
Speaker 10: and distance and speculative in terms of what will actually
31:53
Speaker 10: happen and so forth, and they're subject to other agencies jurisdiction,
31:57
Speaker 10: either state agencies or federal agencies. Another agency that's involved
32:01
Speaker 10: with rail safety, for example, So when you talk about
32:05
Speaker 10: the condition of the tracks and whether there's the potential
32:08
Speaker 10: for spills, his argument is that's another agency's problem.
32:11
Speaker 4: That's not StB's concern.
32:13
Speaker 10: And refinery operations that's again that's subject to Texas state
32:18
Speaker 10: regulation for whatever that's worth, as well as you know
32:20
Speaker 10: EPA and other agencies. So on his remote in time
32:25
Speaker 10: and space argument, he said, these impacts that the DC
32:29
Speaker 10: Circuit found fault with are not required by NEPA. And
32:32
Speaker 10: number two, he said, when you have these other agencies
32:35
Speaker 10: with responsibilities and STB does not have any authority to
32:39
Speaker 10: control these impacts, then NEPA doesn't require STB to have
32:43
Speaker 10: to analyze them. What's the point he said of analyzing
32:47
Speaker 10: all this to the nth degree when they can't do
32:49
Speaker 10: anything about it, And so that was his argument.
32:52
Speaker 3: Did the challengers have a test?
32:54
Speaker 10: Yeah, So the challengers said, well, first of all, NIPA
32:58
Speaker 10: has always require fired consideration of indirect effects, and these
33:04
Speaker 10: are foreseeable indirect effects. And there really wasn't a whole
33:07
Speaker 10: lot of argument. Even Clement conceded, these are foreseeable impacts.
33:12
Speaker 10: They may be difficult to quantify, although the environmental advocates
33:16
Speaker 10: that they weren't difficult to quantify. I mean, you know
33:19
Speaker 10: how much oil is going to be extracted, and from
33:23
Speaker 10: that you can begin to calculate how much will be refined,
33:25
Speaker 10: and what kind of spills might happen and so forth.
33:28
Speaker 4: You know, the environmental groups challenging.
33:31
Speaker 10: This project, I thought, we're able to say, look, what
33:34
Speaker 10: we're asking for here is not that unreasonable. It's not
33:37
Speaker 10: that different from what courts have required in the past.
33:40
Speaker 10: And it should still be the test here that you know,
33:43
Speaker 10: when the agency undertakes to do an analysis, it needs
33:47
Speaker 10: to do it right.
33:48
Speaker 3: But did it seem like justice is across the ideological
33:52
Speaker 3: spectrum had problems with the environmentalists position.
33:56
Speaker 10: Here's what I would say as the bottom line, there's
33:59
Speaker 10: no support on the bench, either liberals or conservatives, to
34:04
Speaker 10: uphold the DC Circuit.
34:05
Speaker 4: That was clear.
34:06
Speaker 10: The liberal wing of the Bench asked as many difficult
34:08
Speaker 10: questions of the environmental advocate as did the conservative justices,
34:12
Speaker 10: in some cases even more aggressive, right, So they were
34:15
Speaker 10: clearly signaling they were not going to be upholding the
34:19
Speaker 10: DC Circuit. And my reading is what they were really
34:22
Speaker 10: signaling to the rest of the conservative colleagues on the
34:25
Speaker 10: Bench was, let's see if we can find a basis
34:28
Speaker 10: to overturn the DC Circuit's decision and allow this project
34:33
Speaker 10: to proceed that doesn't do any more damage to the
34:36
Speaker 10: NEPA process than quote is necessary to decide this case.
34:41
Speaker 10: So that's what I'm going to be looking for, not
34:44
Speaker 10: what the outcome is. The outcome's clear. You know, NEPA
34:46
Speaker 10: has been in front of the Supreme Court fifteen different
34:49
Speaker 10: times and has lost every single time. This will make
34:53
Speaker 10: the sixteenth time that NPA will have lost in the
34:56
Speaker 10: Supreme Court. That seems foreordained to me. But the real
35:00
Speaker 10: question is how broadly is the Court going to go
35:04
Speaker 10: in limiting the scope of NIPA analysis in a variety
35:09
Speaker 10: of other cases? This is just you know, one eighty
35:11
Speaker 10: eight mile rail line, right That NEPA applies to a
35:15
Speaker 10: huge number of federal actions, of course, So that's what
35:19
Speaker 10: I'm going to be looking for.
35:20
Speaker 4: Will they write a.
35:21
Speaker 10: Narrow opinion, overturn the DC circuit, let this project be finished,
35:26
Speaker 10: and leave it the rest of it alone.
35:27
Speaker 3: Pat, I want you to listen to what Justice Brett
35:29
Speaker 3: Kavanaugh said about deference to agencies being important here.
35:34
Speaker 9: It seems to me the deference of the courts has
35:36
Speaker 9: to be huge with respect to how the agencies think
35:41
Speaker 9: about the scope of what they're going to consider. And
35:45
Speaker 9: it seems to be the problem that is crept in
35:48
Speaker 9: is conflating what the agency can do and should do
35:51
Speaker 9: from what the role of the courts is here by
35:54
Speaker 9: the courts taking an overly aggressive role.
35:57
Speaker 3: Correct me if I'm wrong. But wasn't Kavanaugh and the
36:00
Speaker 3: majority when the Court threw out the Chevron doctrine and
36:03
Speaker 3: deference to agencies interpretations of ambiguous statutes?
36:09
Speaker 10: Well, you know they all saying consistency is the hob
36:12
Speaker 10: goblin of small minds. So yeah, there's a little bit
36:18
Speaker 10: of inconsistency there, right, So we will defer to agencies
36:23
Speaker 10: when we like what they're doing, but not defer to
36:26
Speaker 10: them when we don't. I'm not going to go completely
36:28
Speaker 10: cynical on that, although I'm tempted, but certainly.
36:32
Speaker 4: There's tension here between when you're going to give an
36:35
Speaker 4: agency difference and when you're not.
36:36
Speaker 10: You know, this is a gray area of Neva law,
36:39
Speaker 10: I have to say, and you know, reasonable people, I
36:42
Speaker 10: suppose can disagree about how far you should go.
36:45
Speaker 3: And we'll find out by June just how far the
36:47
Speaker 3: court goes with respect to NIPA. Thanks so much, Pat.
36:51
Speaker 3: That's Professor Pat Parento of the Remont Law and Graduate School.
36:55
Speaker 3: And that's it for this edition of the Bloomberg Law Podcast.
36:58
Speaker 3: Remember you've can always get the latest lead the news
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Speaker 3: I'm June Grosso, and this is Bloomberg