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Mangione Murder As Terrorism Charge & Judicial Ethics · Bloomberg Law

0:03
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
0:09
Speaker 2: This was a frightening, well planned, targeted murder that was
0:14
Speaker 2: intended to cause shock and attention and intimidation. It incurred
0:20
Speaker 2: in one of the most bustling parts of our city,
0:23
Speaker 2: threatening the safety of local residents and tourists alike, commuters
0:28
Speaker 2: and business people just starting out on their day.
0:32
Speaker 3: Manhattan District Attorney Alvin Bragg announced the indictment of Luigi
0:36
Speaker 3: Mangioni on first degree murder charges for the fatal shooting
0:40
Speaker 3: of United Healthcare CEO Brian Thompson. Prosecutors elevated the case
0:45
Speaker 3: to first degree murder, saying the shooting was a carefully
0:49
Speaker 3: choreographed act of terrorism.
0:51
Speaker 2: This was a killing that was intended to evoke terror,
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Speaker 2: and we've seen that reaction.
1:00
Speaker 3: He is also charged with one count of murder in
1:02
Speaker 3: the second degree as a crime of terrorism, and another
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Speaker 3: count of second degree murder. In the last few weeks,
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Speaker 3: we've seen the celebration of Mangioni on social media, treating
1:13
Speaker 3: him like a folk hero and an avenger with a
1:16
Speaker 3: superhero type name of the Adjuster. Memes show him as
1:20
Speaker 3: a saint with a Halo songs, praise him on TikTok,
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Speaker 3: there's the hashtag free Luigi movement, and merchandise from t
1:28
Speaker 3: shirts to tote bags, perhaps in part the public's response
1:33
Speaker 3: to a broken healthcare system that many have struggled with.
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Speaker 3: New York Police Commissioner Jessica Tish condemned the lionization of Mangioni.
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Speaker 4: Let me say this plainly. There is no heroism in
1:46
Speaker 4: what Mangioni did. This was a senseless act of violence.
1:51
Speaker 4: It was a cold and calculated crime that stole a
1:54
Speaker 4: life and put New Yorkers at risk. We don't celebrate
1:59
Speaker 4: murders and don't lionize the killing of anyone.
2:03
Speaker 3: Joining me is criminal defense attorney Jeremy saland a former
2:06
Speaker 3: Manhattan prosecutor, Jeremy How unusual is this first degree murder
2:11
Speaker 3: charge in furtherance of terrorism?
2:14
Speaker 1: Well, it's very atypical. Though. First degree murder in and
2:19
Speaker 1: of itself is not meaning if someone is accused of
2:23
Speaker 1: killing a police officer, for example, someone is accused of
2:26
Speaker 1: killing a potential witness in a criminal case, killing someone
2:30
Speaker 1: for hire. There's certain broken out areas of law that
2:34
Speaker 1: allow for certain murders to qualify its first degree. One
2:39
Speaker 1: of those is terrorism and committing a terrorist act, and
2:42
Speaker 1: that's specifically defined in the Penal Law of New York
2:46
Speaker 1: in forty nine point h five of the Penal Law,
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Speaker 1: and it's broken out to three sections, and the DA's
2:52
Speaker 1: office listed them all, so that gives them some leeway
2:56
Speaker 1: to argue that, you know, this was some effort to
2:59
Speaker 1: intimidate the public purse of this agenda that he has.
3:03
Speaker 1: I don't know. I think it's part of a stretch
3:05
Speaker 1: in my opinion, when we think of a terrorist in
3:08
Speaker 1: a sort of general sense, it doesn't have to be
3:11
Speaker 1: someone who's a foreign actor. Can certainly be someone who's
3:13
Speaker 1: in the United States and even locally. But I also
3:16
Speaker 1: think that most people would see that as somebody who
3:19
Speaker 1: is an individual or with a group of people who
3:22
Speaker 1: maybe want to attack our transportation system to send a
3:24
Speaker 1: message to the United States, as opposed to sending a
3:27
Speaker 1: message to United healthcare and insurance suppliers and providers that
3:32
Speaker 1: be warned. The other concern I have with this, and
3:34
Speaker 1: this ties into the insanity defense or lack thereof, that
3:38
Speaker 1: even if Lui Demandioni's mental state is lacking for the
3:43
Speaker 1: purpose of someone we would think would be completely mentally
3:47
Speaker 1: healthy and stable. It may not necessarily rise to a
3:49
Speaker 1: legal defense of insanity. But when I look at it
3:53
Speaker 1: in the view of terrorism, I think of someone or
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Speaker 1: a group of an organization that has been doing this
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Speaker 1: for years or even dec aid in furthering this agenda
4:01
Speaker 1: that they have as opposed to someone who it appears
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Speaker 1: as right a normal, healthy life until relatively recently, and
4:08
Speaker 1: whether there's some trauma an injury that caused this or
4:11
Speaker 1: something else. But in the past few months or even
4:14
Speaker 1: a year, he lost that mental health that he had,
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Speaker 1: So it's just really a terroristic act and just what
4:19
Speaker 1: we think of him as a terrorist. I get the
4:22
Speaker 1: District Attorney's office wants to send a message that you
4:25
Speaker 1: cannot lionize this man's actions, that it's never acceptable to
4:29
Speaker 1: hunt someone down if true because of their career and
4:32
Speaker 1: the services that they provide as a public is galvanized
4:35
Speaker 1: behind them to some extent. But merely because you want
4:39
Speaker 1: to send a message does not mean that the elements
4:42
Speaker 1: of the crimes fit it. And I don't really believe
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Speaker 1: necessarily that calling him a quote unquote terrorist and the
4:47
Speaker 1: purpose of the penal law is applicable or appropriate it's
4:51
Speaker 1: a little bit of a stretch or a lot of
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Speaker 1: bit of a stretch, and it gives them sort of
4:54
Speaker 1: a hammer now that they can really reeld against this
4:57
Speaker 1: young man. True or not that he committed this.
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Speaker 3: Crime, and brag said a couple of times that the
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Speaker 3: shooting took place in one of the most bustling parts
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Speaker 3: of our city, threatening the safety of local residents and
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Speaker 3: tourists alike, and commuters and business people. That seems to
5:13
Speaker 3: be something of an exaggeration of the dangers, because the
5:17
Speaker 3: shooting happened very early in the morning and the street
5:20
Speaker 3: wasn't crowded.
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Speaker 1: So I'm going to interrupt on that point and just
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Speaker 1: say that that's neither here nor there really in terms
5:27
Speaker 1: of whether he was acting or committing a terrorist act.
5:30
Speaker 1: Then charged with reckless danger and because you could have
5:32
Speaker 1: hurt somebody else, right, there's a colony for that merely
5:36
Speaker 1: because of when and where he did it, that and
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Speaker 1: of itself should not all of a sudden elevate it
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Speaker 1: to a terrorist act. Because if I'm someone who lives,
5:43
Speaker 1: whether it's Battery Park all the way uptown in Harlem,
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Speaker 1: anywhere in the city of New York, in this case, Manhattan.
5:49
Speaker 1: If a loved one is killed, my cousin, my brother,
5:51
Speaker 1: my sister, my aunt, my uncle, why did the CEO
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Speaker 1: cus killer get treated differently than someone who's dodging, you know,
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Speaker 1: drugs in the street or someone who's killed in a
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Speaker 1: domestic case for example? Why does the CEO get treated
6:03
Speaker 1: differently in terms of who he is? And a message
6:06
Speaker 1: was certainly there from Luigi if you believe it as
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Speaker 1: true and as alleged, but is that elevated to actually
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Speaker 1: and terrorist Act by law? It seems to be a
6:15
Speaker 1: pushing of the statute. And what it does for prosecutors
6:19
Speaker 1: is it goes from generally, on a murder two, you're
6:22
Speaker 1: looking at fifteen to twenty five years to life, meaning
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Speaker 1: you can get sentenced in that fifteen to twenty five
6:27
Speaker 1: year period, but then you're eligible for parole after that.
6:30
Speaker 1: So let's just make it up that to say it's
6:32
Speaker 1: twenty five you know you're eligible for parole. There, twenty
6:35
Speaker 1: six you're eligible parole, twenty seven year eligible for parole.
6:37
Speaker 1: So there is that tags on. Now with the murder one,
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Speaker 1: it elevates it to twenty to twenty five as supposed
6:44
Speaker 1: to fifteen to twenty five and it's still the life side,
6:47
Speaker 1: but there's an alternative of life without parole. Once you
6:52
Speaker 1: go into terrorist, whether it's second or first degree, you
6:55
Speaker 1: have that without pole backside of it. That's a huge hammer.
7:00
Speaker 1: Now it's an overcharge possibly, and if there is a
7:04
Speaker 1: site defense, one of the things that it does is
7:06
Speaker 1: that it sort of forces the hand of the defense
7:10
Speaker 1: and the accused to say, am I going to really
7:13
Speaker 1: risk life without pool? There may be a plea in
7:16
Speaker 1: this case, regardless, I can't tell you what's going to happen.
7:19
Speaker 1: There may be a difficult but viable insanity defense, and
7:23
Speaker 1: difficult for sure. But once you throw out on a
7:27
Speaker 1: twenty six year old person, or anyone for that matter,
7:30
Speaker 1: life without parole, it changes the conversation.
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Speaker 3: Are they trying this strategy of you know, if the
7:36
Speaker 3: jury doesn't go for the top charge murder one, they
7:40
Speaker 3: may compromise on the second degree murder. Although that strategy
7:45
Speaker 3: didn't seem to work in the Daniel Penny choke hold case.
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Speaker 1: Daniel Penny is vastly different. Vastly different because it clearly
7:54
Speaker 1: was not an intentional homicide, even if you believed everything.
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Speaker 1: The question is whether it was reckless as a matter
8:00
Speaker 1: of law or criminally negligent, and we don't need to
8:02
Speaker 1: describe those mental states or lack thereof. This is different
8:06
Speaker 1: because you're either going to believe that he had a
8:08
Speaker 1: site defense and he could mentally was aware of what
8:12
Speaker 1: was happening it was his intent or not. So there's
8:15
Speaker 1: still the quote unquote regular murder two that's in there
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Speaker 1: as well. I think it's a waste of an alliplications.
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Speaker 1: If you believed he was mentally incapacitated and had a
8:23
Speaker 1: mental defect or ate in't and if he didn't, then
8:25
Speaker 1: you believe he had the intent, you know, which is
8:27
Speaker 1: hard to overcome, then you've got your murder. So you know,
8:30
Speaker 1: I don't think they have to parse through that. To me,
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Speaker 1: it's the DA's office taking an extra step that I
8:35
Speaker 1: think is unnecessary to say, you don't come to New York,
8:39
Speaker 1: you don't commit these crimes. We should all be safe,
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Speaker 1: and you know what, anyone's standing behind this young man
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Speaker 1: really should be ashamed and understand if you're going to
8:47
Speaker 1: copycat this and mimic this, something wicked. This way comes
8:51
Speaker 1: for you in the four corners of the law. But
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Speaker 1: I do believe that it's a stretch because a murder
8:56
Speaker 1: too is when I say, just as bad. If anyone
8:59
Speaker 1: knows understand the consequences, they're not going to say, oh
9:02
Speaker 1: wait a second. I mean I could face life in
9:04
Speaker 1: prison as opposed to thirty five years before I get parrolled.
9:08
Speaker 1: That's not part of someone's calculus.
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Speaker 3: So, Jeremy, you said that it's a stretch. But does
9:12
Speaker 3: the prosecution lose anything by having that first degree murder charge?
9:18
Speaker 3: Is there any downside?
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Speaker 1: They don't lose anything other than possibly credibility, not credibility
9:25
Speaker 1: in the merits of the prosecution, not credibility in the
9:28
Speaker 1: heart of the case. But I go back to what
9:32
Speaker 1: I said before. Let's just say I live in a
9:34
Speaker 1: community and I'm avoiding, you know, drug dealers, and someone
9:38
Speaker 1: comes out to get me, or I'm a victim of
9:40
Speaker 1: domestic violence, or for whatever reason, someone's you murdered, either
9:44
Speaker 1: you're driving uber or a taxi. My life is equal
9:48
Speaker 1: to mister Thompson's life, and he is a victim no
9:51
Speaker 1: matter what the outcome of this case. But the person
9:55
Speaker 1: who is accused of that homicide, that murder should be
9:58
Speaker 1: treated equally and not greater. Because we want to send
10:02
Speaker 1: a message, we should always be sending a message that
10:04
Speaker 1: homicide is wrong. I get it. I get it. We
10:06
Speaker 1: don't want copycac I totally understand that. We don't want
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Speaker 1: to lie. I someone if true about their misconduct, so
10:12
Speaker 1: they don't lose anything necessarily in the eyes of the law.
10:15
Speaker 1: But to the public, I think if you went out
10:17
Speaker 1: and you pulled one hundred people, you'd have some people saying, wait,
10:20
Speaker 1: this is not okay. There needs to be accountability. But
10:23
Speaker 1: this charge is not the right charge.
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Speaker 3: So you mentioned not guilty by reason of insanity, and
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Speaker 3: his attorney, Karen Friedman Agnifilo, suggested that defense before she
10:34
Speaker 3: became his attorney. How difficult is an insanity defense?
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Speaker 1: It is very difficult, depending on your sort of facts
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Speaker 1: and evidence here, there's going to be difficulty because if
10:46
Speaker 1: you believe as alleged and what's being shared, this has
10:50
Speaker 1: been something that was not spur of the moment, but premeditated.
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Speaker 1: There's words that were written and said. I'm not talking
10:58
Speaker 1: just about on the shellcasing, but terms of writing things
11:01
Speaker 1: that he has said about this why and acknowledgment. There's
11:04
Speaker 1: conversation about the unibomber, you know, understanding the gravity of
11:07
Speaker 1: what he did. So all of this doesn't help your
11:11
Speaker 1: insanity defense because one of the hallmarks of your insanity
11:13
Speaker 1: defense is I could not formulate that intent because I
11:17
Speaker 1: had this mental defect, and this mental defect that I
11:20
Speaker 1: had prevented me from being aware and understanding the consequences
11:25
Speaker 1: of my actions. So it's quite difficult in this scenario.
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Speaker 1: But at the same time, one could plan, and one
11:32
Speaker 1: could prepare, and one could take a position as to
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Speaker 1: why they're doing something and understand the gravity of it,
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Speaker 1: and still suffer from a mental infirmity that doesn't allow
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Speaker 1: him to fully comprehend the consequences morally, legally of their actions.
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Speaker 1: It's a heavy lift, but I will say this, it
11:46
Speaker 1: looks less and less like a case like this will
11:49
Speaker 1: go to trial, especially on a murder one. Though maybe
11:52
Speaker 1: they can succeed in getting it thrown out when the
11:55
Speaker 1: judge reviews a grand jury minutes and Karen challenges that,
11:57
Speaker 1: which I believe is wife for a challenge success or not,
12:00
Speaker 1: it's right for a challenge, but the mitigation view, So
12:03
Speaker 1: whether or not it rises to the insanity defense as
12:06
Speaker 1: a matter of law, there has to be a reason
12:10
Speaker 1: DA's office that a young man of twenty six years old,
12:13
Speaker 1: who is incredibly bright at giving regular kid made this
12:17
Speaker 1: change and something went awry. What was the catalyst that
12:21
Speaker 1: clauses to happen? If I understand correctly, it's not as
12:24
Speaker 1: if his family was victimized if you will or hurt
12:28
Speaker 1: or not covered by some insurance or something like that,
12:31
Speaker 1: and so it's just some anger that you'll hurt me personally.
12:34
Speaker 1: So there's some sort of mental defect during confirmity that
12:37
Speaker 1: was caused at some point that should bear into what
12:41
Speaker 1: ultimately happens in this case, meaning to lower the potential
12:45
Speaker 1: sentence and plea, even if as a matter of law
12:47
Speaker 1: that wouldn't necessarily negate his intent.
12:49
Speaker 3: If it does go to trial, do you think that
12:52
Speaker 3: one of the possibilities that the defense will be looking
12:55
Speaker 3: for is dury nullification. I mean you see this outpouring
12:59
Speaker 3: of sympathy and sometimes praise for Mangione on social media
13:03
Speaker 3: and elsewhere.
13:04
Speaker 1: Yeah, if you're going in for jury nullification and that's
13:07
Speaker 1: your only defense in this case, and it may have
13:11
Speaker 1: to be part of it, you've lost because to hope
13:14
Speaker 1: that you're going to get ultimately, let's just say you
13:18
Speaker 1: do get one or two. The DA's office is not
13:21
Speaker 1: going to turn around and say, you know, we're just
13:23
Speaker 1: going to walk away. Mistrial does not just give him
13:25
Speaker 1: cleaned hands and it's done. This will proceed. Someone has died,
13:29
Speaker 1: so you may win a battle but lose the war.
13:32
Speaker 1: At the same time, there could very well be someone
13:35
Speaker 1: in that jury pool who tells you I will be
13:39
Speaker 1: you know, objective. I will listen to the judges he
13:41
Speaker 1: or she instructs me on the law. I will follow
13:44
Speaker 1: the evidence as presented. But inside they're saying, damn Bee
13:47
Speaker 1: and you know, mister Thompson in the insurance industry, and
13:51
Speaker 1: really be that sort of Manchurian candidate, if well, juror
13:55
Speaker 1: who is really in there for the wrong reasons, with
13:57
Speaker 1: his own agenda. That's not what's being present. There is
14:00
Speaker 1: a risk of that. There was a risk of that,
14:02
Speaker 1: I thought during the Trump trial, but in a different way,
14:05
Speaker 1: meaning that someone might got on who would really just
14:07
Speaker 1: want to convict because they don't like Trump. This is
14:10
Speaker 1: sort of the opposite. I want to acquit because I
14:15
Speaker 1: like what he did, or I believe in what he did,
14:17
Speaker 1: which is more powerful, because all you need is one
14:19
Speaker 1: person to say I'm not convicting and that the trial
14:21
Speaker 1: jury gets hung.
14:22
Speaker 3: Do you see any other defenses that she could raise?
14:27
Speaker 3: The evidence is overwhelming as far as we know.
14:30
Speaker 1: Yeah, from what I have seen, overwhelming is being conservatives.
14:35
Speaker 1: From what I have seen, you have the ghost gun,
14:37
Speaker 1: you have the matching ammunition that it allegedly been shot
14:41
Speaker 1: from that firearm. You have the ID, you have his
14:44
Speaker 1: response at the time. You know there was a lot
14:46
Speaker 1: there that you have the video obviously surveillance of something.
14:52
Speaker 1: So there's a lot there. I don't believe the defenses
14:55
Speaker 1: it wasn't me. So if it wasn't me, and there's
14:59
Speaker 1: no legal challenge to the problem cause to arrest him
15:02
Speaker 1: and search him or whatever they did and recover these items,
15:04
Speaker 1: you're looking at that mental state. The best way I
15:07
Speaker 1: would couch this is an angle here is I may
15:10
Speaker 1: have committed the act, but I did not commit the crime.
15:14
Speaker 1: I may have committed the act, meaning yeah, I may
15:16
Speaker 1: be the guy who pulled that trigger, but I didn't
15:18
Speaker 1: commit the crime because of that mental defect, that insanity
15:22
Speaker 1: defense that I lack to be able to formulate that
15:24
Speaker 1: full and accurate intense. So it's a sort of law
15:27
Speaker 1: school issue. But anyone who's in that courthouse would know
15:32
Speaker 1: you need the physical act and you need the mental state.
15:34
Speaker 1: Physical act as they are, the mental state is lacking.
15:37
Speaker 1: That to me has to be your best defense, whether
15:40
Speaker 1: it mitigates or ultimately or successful in as a matter
15:43
Speaker 1: of law, to say there's an insanity of defense.
15:46
Speaker 3: Do you think it's more likely than not that this
15:49
Speaker 3: will end in a guilty play, that there won't be
15:52
Speaker 3: a trial.
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Speaker 1: If the prosecution is successful with the murder one with
15:57
Speaker 1: the terrorist piece of it, even the murder two with
16:00
Speaker 1: the terrorist piece to it. That reality of a potential
16:04
Speaker 1: life without parole is enormous. It incentivizes, if that's the
16:09
Speaker 1: right term, a plea. That being said, I would expect
16:13
Speaker 1: there likely, well, I shouldn't say I would expect. I've
16:15
Speaker 1: been around the block long enough not to expect. There
16:18
Speaker 1: is certainly a likelihood that there would be a plea regardless,
16:21
Speaker 1: because I do believe the insanity defense is very, very difficult,
16:25
Speaker 1: and we may find out, though we won't hear about
16:28
Speaker 1: it in real time. The parties are negotiating somewhere in
16:31
Speaker 1: that fifteen to twenty five to life range, trying to
16:35
Speaker 1: get closer to fifteen or twenty as opposed to twenty five.
16:39
Speaker 3: It's anticipated that Manngioni is going to waive extradition tomorrow.
16:44
Speaker 3: Is there any point in not waiving extradition.
16:47
Speaker 1: Not really. You can conceive of a situation where he's
16:51
Speaker 1: in a stable place. You know where he is. He's
16:54
Speaker 1: not on Rikers, which is a headache for both him
16:57
Speaker 1: and your council. You're getting more opportun community to get
17:01
Speaker 1: evidence and formulate and strategize, getting more opportunity to meet
17:05
Speaker 1: with him to really understand and prepare and get all
17:10
Speaker 1: of your experts ready to go. But that's nominally helpful
17:13
Speaker 1: because when I'm a New York attorney, as Karen is,
17:17
Speaker 1: I want my client near me. Her being so far
17:20
Speaker 1: away does not help his defense does not help her
17:23
Speaker 1: When she's not by her home based office with the
17:25
Speaker 1: people who are supporting her as an attorney, whether it's
17:29
Speaker 1: the experts, support staff, the other attorneys are involved in this.
17:32
Speaker 1: You want to be at your own home base. There's
17:35
Speaker 1: really nothing valuable, and I believe that Dicky's response of
17:40
Speaker 1: Belle should be a million dollars or five million dollars.
17:42
Speaker 1: I haven't seen the evidence that there's nothing connecting my
17:45
Speaker 1: client and substance was really poor form, not to take
17:48
Speaker 1: a shot at him personally. That's not meant. I just
17:50
Speaker 1: think that sometimes you just got to let your strategy
17:53
Speaker 1: evolve and be more vague in what you're doing until
17:55
Speaker 1: you know what you're doing. This isn't about fighting bail.
17:58
Speaker 1: He's going to be Roman returns to New York. But
18:01
Speaker 1: I believe at this point you get him back and
18:04
Speaker 1: we try to change that narrative if I'm Karen, and
18:07
Speaker 1: get him back here and start working on that defense,
18:10
Speaker 1: which I'm sure she's already started.
18:13
Speaker 3: Always a pleasure to talk to you, Jeremy, Thanks so much.
18:15
Speaker 3: That's criminal defense attorney Jeremy Salande. You may remember the
18:20
Speaker 3: flag flap over Justice Samuel Alito's flying of flags outside
18:24
Speaker 3: his homes in Virginia and New Jersey that were also
18:28
Speaker 3: carried by Donald Trump supporters during the January sixth Capital riots.
18:33
Speaker 3: There were calls for Alito to recuse himself from two
18:36
Speaker 3: January sixth related cases, but the Justice refused to do
18:40
Speaker 3: so and suffered no consequences. So who has suffered consequences
18:45
Speaker 3: over the incident. A federal judge who wrote an essay
18:48
Speaker 3: critical of Alito's flag flying has been found guilty of
18:52
Speaker 3: misconduct joining me is an expert in legal ethics. Steven
18:56
Speaker 3: Giller is a professor at NYU Law School. This essay
18:59
Speaker 3: by federal Judge Michael Ponzer was entitled a federal judge wonders,
19:05
Speaker 3: How could Alito have been so foolish? Did this essay
19:09
Speaker 3: stand out?
19:11
Speaker 5: Yeah, I mean, the essay was a mistake, a minor mistake.
19:15
Speaker 5: Worst has happened. But Judge consur should have refrained from
19:21
Speaker 5: jumping into its political play and that generated the complaint.
19:26
Speaker 3: Yeah, And the complaint was filed by a conservative advocacy
19:30
Speaker 3: group run by a Trump ally, And the complaint was
19:33
Speaker 3: handled by Chief Judge Albert Diaz of the Federal Appeals
19:37
Speaker 3: Court in Richmond, Virginia. What did he say was wrong
19:42
Speaker 3: with the essay?
19:43
Speaker 5: Well, I mean, in any since, this issue comes down
19:47
Speaker 5: to the following. On the one hand, judges are encouraged
19:51
Speaker 5: to speak out in a way that will improve the
19:54
Speaker 5: law and the administration of justice. Judges are especially knowledgeable
20:00
Speaker 5: about those things, so the Code of Judicial Conduct encourages
20:04
Speaker 5: them to contribute to the development of the law. On
20:07
Speaker 5: the other hand, in what they say, they have to
20:10
Speaker 5: be careful not to undermine public confidence in the integrity
20:14
Speaker 5: and independence of the court, and so they have to
20:17
Speaker 5: walk a kind of fine line between what they say
20:20
Speaker 5: and how they say it and where they say it.
20:23
Speaker 5: For Judge Consor, he used certain inflammatory language, at least
20:28
Speaker 5: inflammatory when judges use it. And he published his accusation
20:33
Speaker 5: on the op ed page of the New York Times,
20:36
Speaker 5: which is about the most public place you can imagine
20:40
Speaker 5: for an opinion about a Supreme Court justice. So that
20:45
Speaker 5: was a mistake. I mean, he could have said pretty
20:47
Speaker 5: much the same things in different language, different tone at
20:51
Speaker 5: a judicial conference or a law school panel discussion. But
20:58
Speaker 5: he had a certain tone and certain word choice, using
21:01
Speaker 5: the words foolish and describing Justice Alito's conduct, and he
21:06
Speaker 5: did it in a very public way, and that created
21:09
Speaker 5: the problem.
21:10
Speaker 3: Judge says something at a judicial conference that rarely gets
21:14
Speaker 3: out to the public. If no one makes any comments,
21:17
Speaker 3: then you would think that what Alito did was perfectly fine.
21:21
Speaker 3: With members of the federal.
21:23
Speaker 5: Bench, well, a lot of people were saying a lot
21:26
Speaker 5: about Alito's flag. So the question is not whether anyone
21:30
Speaker 5: says anything. The question is where the lower court judges
21:33
Speaker 5: should attack publicly attack in the language Judge constra use
21:39
Speaker 5: Alito's flag issue in the manner that Judge Consor did. Yes,
21:45
Speaker 5: it's true that statements made at a conference are not
21:49
Speaker 5: discovered by the public. But when you become a judge,
21:54
Speaker 5: you give up certain First Amendment rights. You have a
21:57
Speaker 5: right to criticize the justice in the way that Judge
22:00
Speaker 5: Ponsor did if you are not a judge. But judges are,
22:06
Speaker 5: just like lawyers, are restricted in what they may publicly
22:10
Speaker 5: say consistent with the First Amendment.
22:13
Speaker 3: I'm confused about what the exact reason was, because there
22:16
Speaker 3: were some things I read that said it was because
22:19
Speaker 3: it might have been considered to be connected to a case, and.
22:23
Speaker 5: Yeah, yeah, I mean that's part of it. There are
22:26
Speaker 5: several layers here, and Judge Diaz's opinion. One of the
22:32
Speaker 5: problems he pointed out was that at the time that
22:35
Speaker 5: Ponso wrote, almost contemporaneous with the op eds, there was
22:41
Speaker 5: debate about whether or not the flag controversy would require
22:46
Speaker 5: Justice Alito to refuse himself from the January sixth cases.
22:51
Speaker 5: So that was in the news, and that aggravated the situation.
22:55
Speaker 5: It was a politically fraught subject. And if there's one
22:58
Speaker 5: thing we know that judicial ethics, it's that judges should
23:02
Speaker 5: stay out of politics or even the illusion that they
23:07
Speaker 5: are mixing it up with a political question. So that
23:10
Speaker 5: was the case the January sixth cases and Alito's possible
23:14
Speaker 5: need to recuse, And at that moment it comes Judge
23:18
Speaker 5: Consor calling his conduct in regard to the flag controversy foolish,
23:24
Speaker 5: and that could be seen even though Judge Ponsor says
23:28
Speaker 5: he did not mean to say this, He did not
23:30
Speaker 5: mean to connect it to the January sixth cases. It's
23:34
Speaker 5: his job to realize how the public might hear it,
23:38
Speaker 5: and the public might hear it as a judge weighing
23:42
Speaker 5: in on Alito's need to recuse, which is a quasi
23:46
Speaker 5: political question in this context.
23:49
Speaker 3: He also wrote twenty twenty three opinion column entitled a
23:54
Speaker 3: Federal judge asks, does the Supreme Court realize how bad
23:58
Speaker 3: it smells? So there was no misconduct complaints filed about that.
24:04
Speaker 5: This is a good example of how work choice matters.
24:07
Speaker 5: There's nothing wrong with the judge writing an out ed saying, hey,
24:11
Speaker 5: we're in trouble. The courts have suffered in public opinions.
24:15
Speaker 5: Critical to the country is the public's perception of the
24:20
Speaker 5: legitimacy of the court that could be in an op ed,
24:23
Speaker 5: a widely circulated up ed in the mainstream media. That's
24:27
Speaker 5: all true, but when you use words like smell or
24:31
Speaker 5: other highly charged words, it takes on a different character. Now,
24:37
Speaker 5: judge sponsor might say, well, I didn't choose the headline,
24:40
Speaker 5: and maybe that's true, although I think for a judge
24:43
Speaker 5: to write and not sare he should have at least
24:46
Speaker 5: veto power over the headline because he has responsibilities that
24:50
Speaker 5: the headline writer is not. So yes, it could have
24:53
Speaker 5: been the basis, but it was more abstract than the
24:57
Speaker 5: later ed and probably would not have resulted in any
25:01
Speaker 5: kind of timing of impropriety coming up.
25:04
Speaker 3: Public opinion of the judiciary at an all time low.
25:07
Speaker 3: This is Bloomberg. I've been talking to NYU law professor
25:12
Speaker 3: Stephen Gillers about a decision that a federal judge committed
25:16
Speaker 3: judicial misconduct in criticizing Justice Samuel Alito's flying of flags
25:22
Speaker 3: outside his home that were also carried by Donald Trumps
25:25
Speaker 3: supporters during the January sixth, twenty twenty one riots at
25:29
Speaker 3: the Capitol. So what strikes me as unfair and a
25:35
Speaker 3: bit hypocritical is that Poncer violated the code of conduct
25:40
Speaker 3: that applies to all federal judges except Supreme Court justices.
25:44
Speaker 3: And we have had over the last few years instances
25:48
Speaker 3: where Supreme Court justices appear to have violated ethical rules
25:53
Speaker 3: and they don't suffer any consequences, and yet a judge
25:56
Speaker 3: who writes an article suffers consequences.
26:00
Speaker 5: Yeah, that's true. A justice could have written the same
26:03
Speaker 5: outbed about another justice and there'd be no code of
26:07
Speaker 5: conduct that could be used to sanction or discipline the justice.
26:13
Speaker 5: So justices and judges do not work on a level
26:17
Speaker 5: playing field because there's no mechanism as a realistic matter
26:23
Speaker 5: for disciplining a justice as there is for a lower
26:28
Speaker 5: court judge, and that they seem unfair and may seem wrong.
26:33
Speaker 5: But there are also arguments in favor of that, and
26:36
Speaker 5: that is that it's very hard to create a disciplinary
26:40
Speaker 5: apparatus for a justice. It's not impossible, and it's been discussed,
26:45
Speaker 5: but it's not the same as a disciplinary system for
26:48
Speaker 5: lower court judges who could be judged by higher court judges.
26:52
Speaker 5: There are no higher court justices over the Supreme Court,
26:55
Speaker 5: and that's where the number of the problem is.
26:58
Speaker 3: The Supreme Court ethics go that they had done opted
27:00
Speaker 3: has no tease to it right. But some of the justices,
27:03
Speaker 3: I believe Elena Kagan and Katanji Brown Jackson have said
27:08
Speaker 3: that they would agree to having some kind of enforcement mechanism.
27:13
Speaker 5: Would answer that could be an answer. We have to
27:17
Speaker 5: get the details. The details matter, and even justices and
27:22
Speaker 5: scholars who urge some kinds of disciplinary apparatus for the
27:26
Speaker 5: justices have disagree among themselves about the details or have
27:31
Speaker 5: not been precise about how the details would work. There's
27:36
Speaker 5: another aspect here, a bigger story that, to my mind,
27:40
Speaker 5: is more consequential. We have, of late the results of
27:44
Speaker 5: the Gallop Poles showing that the American judiciary is held
27:49
Speaker 5: in very low repute towards the basement among nations in
27:55
Speaker 5: the public confidence in their judiciaris. And I fear that
28:00
Speaker 5: the vitriol and anger a name calling that has infected
28:07
Speaker 5: the political discourse in this country might spill over to
28:12
Speaker 5: how we talk about judges, the motives we attribute to judges,
28:18
Speaker 5: how judges talk about other judges, and that would be
28:21
Speaker 5: just awful. I mean, that could lower the estimation of
28:25
Speaker 5: the public's confidence in the American judiciary even more so.
28:30
Speaker 5: One value of what Judge Diaz wrote in his disciplinary opinion,
28:36
Speaker 5: and what Judge Constor did in accepting the accuracy of
28:41
Speaker 5: what Judge Dias identified. One value is to draw a
28:45
Speaker 5: bright line we are not politics. This is not political.
28:50
Speaker 5: We will not be tempted to behave the way that
28:54
Speaker 5: members of Congress or state legislatures or candidates for political
28:58
Speaker 5: office behaved. We have to ask differently. And that's the
29:04
Speaker 5: message that comes out of the finding by Judge Dias
29:08
Speaker 5: and the acquiescence by Judge Console.
29:12
Speaker 3: Don't you think that a large part of the blame
29:15
Speaker 3: for the way the public views the judiciary is from
29:20
Speaker 3: recent Supreme Court actions where the Court has chosen to
29:23
Speaker 3: get involved in very political issues. And you've seen sixty
29:28
Speaker 3: three decisions over and over again on these hot button
29:32
Speaker 3: issues and consequential issues, and you have, you know, the
29:35
Speaker 3: abortion decision, And it's the Supreme Court decisions that the
29:39
Speaker 3: public hears about most, not lower court judges decisions. So,
29:43
Speaker 3: I mean it seems like there is politics infused in
29:47
Speaker 3: the Supreme Court.
29:49
Speaker 5: Yeah, the Court is suffering from the fact that many
29:53
Speaker 5: of its decisions of late and more to come are
29:57
Speaker 5: dramatic and consequential and generate a lot of disagreement among
30:03
Speaker 5: the public. That problem is not about ethics. That problem
30:07
Speaker 5: is about policy differences, where the Court's decisions are seen
30:12
Speaker 5: as going too far among members of the public, leading
30:16
Speaker 5: to a lower estimation of the court in the public's mind.
30:21
Speaker 5: But you know, that's kind of avoidable if we assume,
30:26
Speaker 5: as we should, as I hope we can, that even
30:29
Speaker 5: the justices to participate in that in those six to
30:32
Speaker 5: three opinions are honestly saying what they believe is true.
30:37
Speaker 5: Even if we disagree with their conclusions. Fundamentally, they're doing
30:42
Speaker 5: their job applying the law as they see it, which
30:45
Speaker 5: is their responsibility. There's no corrective. The public and anger
30:51
Speaker 5: at what they're doing. Disagree with what they're doing, but
30:55
Speaker 5: they haven't done anything wrong. It's the job to make decisions.
31:00
Speaker 5: During the Warrant Court era, there was a lot of
31:03
Speaker 5: possibility to the Warrant Court's rulings on protections for criminal
31:09
Speaker 5: accused persons Miranda, you know, generated enormous anger and perhaps
31:17
Speaker 5: some of the listeners will remember the signs along the
31:19
Speaker 5: highway and peach Earl Lawren. So it goes both ways.
31:23
Speaker 5: It could be liberal decisions, it could be conservative decisions
31:27
Speaker 5: that generate public anger. But that's not about ethics, that's
31:31
Speaker 5: about policy, and the only way to correct for that
31:34
Speaker 5: is by voting.
31:36
Speaker 3: I mean, what about Fifth Circuit Judge James Hoe, who
31:40
Speaker 3: hasn't been shyt on or off the bench about his
31:43
Speaker 3: conservative viewpoints. He's been publicly outspoken about not hiring law
31:48
Speaker 3: clerks from Stanford, Yale or Columbia. Some say he's trying
31:53
Speaker 3: out for the Supreme Court. No one's filing this conduct
31:55
Speaker 3: complaints against him.
31:57
Speaker 5: Well, trying out for the Supreme Court. And what you
32:00
Speaker 5: say and the right has a long stand and pedigree,
32:03
Speaker 5: so there's nothing new there. Again, it depends where you
32:06
Speaker 5: say it, in the words you use, something said in
32:08
Speaker 5: the law review article or in an opinion of the court.
32:11
Speaker 5: There are two places judges can speak their mind freely
32:15
Speaker 5: within certain limitations. One is in their opinions. I mean,
32:19
Speaker 5: lower court judge can criticize a justice's opinion in the
32:24
Speaker 5: lower court judge's own opinion. That's not uncommon. Or you
32:28
Speaker 5: could participate in a law review panel and make the
32:34
Speaker 5: same criticisms. Again, paying attention to the language you use,
32:38
Speaker 5: of the tone, and all of that is okay, judge,
32:41
Speaker 5: Judge Ponzer could have said pretty much the same thing
32:44
Speaker 5: as in his second op ed if he had chosen
32:49
Speaker 5: the right words and the right forum. It matters where
32:52
Speaker 5: you say it, It matters how you say it. And
32:55
Speaker 5: that's where pants Or crossed the line.
32:59
Speaker 3: I mean, all cyclical. Do you see any hope for
33:03
Speaker 3: the public's trust in the judiciary to improve? They went
33:07
Speaker 3: down twenty four percentage points since twenty twenty to a
33:11
Speaker 3: historic low of thirty five percent. Anyway, those are going
33:15
Speaker 3: to come up anytime soon?
33:17
Speaker 5: I don't think so. Those. The low repute of the
33:21
Speaker 5: courts generally and the Supreme Court in particular, is a
33:24
Speaker 5: product of policy disagreements, obviously, abortion, affirmative action, rights of
33:30
Speaker 5: immigrants and those. That's not going to change. We're going
33:33
Speaker 5: to get more of those in the years ahead. That
33:35
Speaker 5: six to three majority is not going to change. Even
33:39
Speaker 5: if Thomas and Alito retire in the next two years,
33:43
Speaker 5: they'll be replaced by a young version of each of them,
33:47
Speaker 5: by a Senate dominated by Republicans and the President who
33:52
Speaker 5: is a Republican. So what we see now is the
33:55
Speaker 5: six to three lopsided nature of the court is going
34:00
Speaker 5: to continue for years to come. It would take some
34:03
Speaker 5: a really remarkable set of circumstances, some justice changing his
34:09
Speaker 5: view of things before we get out of this six '
34:13
Speaker 5: three dilemma. And so because of that, and because the
34:18
Speaker 5: public's trust in the administration of justice is at least
34:22
Speaker 5: in part a product of how it agrees or disagrees
34:26
Speaker 5: with court rulings, it's only to to get worse. And
34:29
Speaker 5: if it gets worse, because the justices are voting based
34:33
Speaker 5: on what they honestly believe is the correct answer, but
34:36
Speaker 5: we want them to do even if we disagree with
34:39
Speaker 5: how they vote, there's no way of preventing that.
34:44
Speaker 3: Well, it looks like those disapproval numbers of the Judiciary
34:48
Speaker 3: and the Supreme Court are not going up anytime soon.
34:52
Speaker 3: Thanks so much for being on the show. That's Professor
34:54
Speaker 3: Stephen Gillers of NYU Law School. And that's it for
34:58
Speaker 3: this edition of the Bloomberg Law Podcast. Remember you can
35:01
Speaker 3: always get the latest legal news by subscribing and listening
35:04
Speaker 3: to the show on Apple Podcasts, Spotify, and at Bloomberg
35:07
Speaker 3: dot com, Slash podcast, Slash Law. I'm June Grosso and
35:12
Speaker 3: this is Bloomberg