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Weekend Law: A Supreme Court Roundup · Bloomberg Law

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Speaker 2: law expert Caroline Malick.
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Speaker 4: They have never said this case.
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Speaker 3: Should never have been brought in the first place.
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Speaker 1: Bloomberg Law with June Grosso from Bloomberg Radio.
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Speaker 2: Welcome to a special holiday edition of the Bloomberg Law Show.
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Speaker 2: I'm June Grosso. Ahead. In this hour, we'll focus on
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Speaker 2: cases before the Supreme Court. The justices will decide when
0:57
Speaker 2: it's okay for police to enter a home during an emergency,
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Speaker 2: whether a judge can bar a criminal defense attorney from
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Speaker 2: talking to their own clients during their testimony, and whether
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Speaker 2: to invalidate Colorado's ban on conversion therapy for miners.
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Speaker 5: If the police could not enter this house based on
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Speaker 5: the facts that they knew then. I don't know when
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Speaker 5: the police are ever going to be able to enter
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Speaker 5: a house to prevent somebody from committing suicide.
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Speaker 2: Police didn't have a warrant when they entered the home
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Speaker 2: of an army veteran in Montana. But they weren't there
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Speaker 2: to arrest William Trevor Case. They were there to help him.
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Speaker 2: His ex girlfriend said that Case had threatened suicide and
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Speaker 2: had a loaded handgun. The police knocked, they yelled, They
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Speaker 2: waited forty minutes, and then they went in. The question
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Speaker 2: before the Supreme Court is what's the standard for police
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Speaker 2: entering a home in an emergency? Justice is from across
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Speaker 2: the ideological spectrum suggested that the officers were right to
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Speaker 2: go in in this case. Here are Justices Samuel Alito
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Speaker 2: and Katanji Brown Jackson.
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Speaker 5: What more would they need here? If they need to
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Speaker 5: be able to look through the window and see him
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Speaker 5: with a gun and point it to his head, or
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Speaker 5: they need to see a dead body on the floor,
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Speaker 5: what more.
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Speaker 1: Did they need?
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Speaker 6: This person had a long history of threatening suicide, whether
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Speaker 6: it be by cop or whether it be on his
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Speaker 6: own or whatever. We have a long conversation detailed specific
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Speaker 6: with the girlfriend about circumstances that look like they're creating
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Speaker 6: a pretty significant emergency.
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Speaker 2: And Justice Brett Kavanaugh questioned Case's attorney about the alternative scenario.
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Speaker 7: Well, if they, after deliberations, walk away and he commits suicide,
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Speaker 7: I mean, what are you thinking, Then it's the officers.
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Speaker 1: That would be unfortunate and tragic. But we are trying
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Speaker 1: to strike up balance between it.
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Speaker 7: And the officers need some clarity, I would think in
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Speaker 7: circumstances like this about what they can do and what
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Speaker 7: they can't do.
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Speaker 2: But there was no such clarity by the end of
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Speaker 2: the arguments. Joining me is former federal prosecutor Robert Mintz,
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Speaker 2: a partner maccarter in English, Bob, So, police normally need
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Speaker 2: a warrant to enter home, but there are some emergency
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Speaker 2: situations that are exceptions. Tell us about that.
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Speaker 3: So there is a so called Emergency Aid exception to
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Speaker 3: the Fourth Amendment, which allows police officers to conduct a
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Speaker 3: warrantless search if they have reasonable suspicion that there is
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Speaker 3: an emergency and an immediate need to protect others or
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Speaker 3: themselves from harm.
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Speaker 2: And tell us about the facts here. Because Case ended
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Speaker 2: up being convicted of assaulting a police officer.
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Speaker 3: The defendant in this case, William Trevor Case, was an
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Speaker 3: army veteran who had a girlfriend who contacted police suggesting
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Speaker 3: that mister Case might be suicidal. Officers arrived at mister
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Speaker 3: Casey's house around nine pm, and they were familiar with
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Speaker 3: his history of alcohol abuse and certain mental health issues.
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Speaker 3: The ex girlfriend had told police that mister Case had
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Speaker 3: a loaded gun, He had threatened to harm police if
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Speaker 3: she tried to send officers to his home, and she
4:21
Speaker 3: claimed before she hung up with the police that she
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Speaker 3: had heard a pop and then silence and was concerned
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Speaker 3: that mister Case had actually pulled the trigger. The officers
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Speaker 3: arrived at mister Case's door, they yelled, they shine flashlights
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Speaker 3: through the windows. They could see empty beer cans, an
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Speaker 3: empty handgun holster, and a notepad with handwriting, which the
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Speaker 3: officers believed at the time was a possible suicide note.
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Speaker 3: After about forty minutes, they entered through the unlocked front door,
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Speaker 3: and when they went upstairs, they saw a closet curtain open.
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Speaker 3: Mister Case lunged forward, his armed outstretched with what officers
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Speaker 3: believed was a handgun. The officer fired one shot, striking
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Speaker 3: mister Case. In the act abdomen. It turned out the
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Speaker 3: handgun was found in a nearby laundry basket. The issue
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Speaker 3: with trial, then, was when the defense tried to exclude
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Speaker 3: the gun and other evidence of the confrontation from the trial.
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Speaker 3: The trial judge overruled that defense and allowed the prosecution
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Speaker 3: to present it to the jury, and he was convicted
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Speaker 3: after a trial.
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Speaker 2: It seemed like the police had a lot of reasons
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Speaker 2: to go in. How much more did the defense think
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Speaker 2: they should have before they entered the house.
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Speaker 3: To put this in context, the Fourth Amendment of the
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Speaker 3: Constitution prohibits unreasonable searches and provides protections for a person's
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Speaker 3: home by generally prohibiting law enforcement from entering without a
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Speaker 3: warrant that is really set up in order to allow
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Speaker 3: people to have privacy in their home in the context
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Speaker 3: of a possible criminal case. The question that was facing
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Speaker 3: justices in this case is what level of certainty must
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Speaker 3: police have that an emergency is underway before entering a
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Speaker 3: home without a warrant. Mister Case's lawyers argued that it
5:59
Speaker 3: should be a high bar. They argue that it should
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Speaker 3: be something called probable cause, which is what police officers
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Speaker 3: need in order to get a warrant to search your
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Speaker 3: home in the case of a criminal investigation. But here
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Speaker 3: this was not a criminal investigation. This was a circumstance
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Speaker 3: in which they believed that there was an emergency and
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Speaker 3: there was someone's life at risk inside the house. So
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Speaker 3: the question is what is the level of certainty that
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Speaker 3: police officers need to have in order to enter the
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Speaker 3: home without a warrant? And the defense argued that that
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Speaker 3: level of certainty in order to avoid needless and dangerous
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Speaker 3: confrontations and to prevent police officers from circumventing the concept
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Speaker 3: of probable cause, that there has to be probable cause
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Speaker 3: that they believe that there is an emergency and that
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Speaker 3: somebody is in imminent danger.
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Speaker 2: The state of Montana and the Trump administration argued that
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Speaker 2: probable cause was too high a standard in these emergency cases.
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Speaker 2: Montana's solicitor general said that a stricter rule of probable
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Speaker 2: cause would quote require hire police to stand outside a
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Speaker 2: dying man's door. So what standard did they argue for.
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Speaker 3: The government argued that the justices should rely on a
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Speaker 3: Supreme Court case from two thousand and six was a
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Speaker 3: unanimous opinion in a case called Brigham City versus Stuart,
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Speaker 3: in which the Supreme Court held that police may enter
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Speaker 3: a building without a warrant when they have an objectively
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Speaker 3: reasonable basis to believe that an occupant is seriously injured
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Speaker 3: or threatened with such injury. So in that case, they
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Speaker 3: took it completely out of the context of probable cause,
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Speaker 3: which really has an entire body of case law that
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Speaker 3: talks about when police may enter a home with or
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Speaker 3: without a warrant in the context of a criminal investigation,
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Speaker 3: and said that here we're talking about imminent risk to somebody.
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Speaker 3: It's not a criminal investigation. It's really a circumstance where
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Speaker 3: police officers may come into a home in order to
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Speaker 3: arguably save the life of somebody or save the life
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Speaker 3: of somebody who may be with somebody who's in danger
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Speaker 3: of hurting them. And in that case the standard is
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Speaker 3: objectively reasonable basis to believe that the occupant is seriously
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Speaker 3: injured or threatened with such injury.
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Speaker 2: It seemed like justice is across the ideological spectrum, thought
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Speaker 2: that the police had good reason to enter here.
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Speaker 3: Yeah, Well, what's interesting here is that the Montana Supreme Court,
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Speaker 3: which is the court that had just heard the case
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Speaker 3: before going to the US Supreme Court sided with the state,
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Speaker 3: but it was a four to three decision, and there
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Speaker 3: were actually three judges on the Montana Supreme Court who
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Speaker 3: dissented and said that for a warrantless search to be reasonable,
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Speaker 3: the higher bar or probable cause, must apply, And then
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Speaker 3: they went further and added that there was no probable
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Speaker 3: cause to believe mister Case was an imminent danger or
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Speaker 3: in need of immediate assistants that would have justified the
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Speaker 3: warrantless entry into the home. When the case went to
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Speaker 3: the Supreme Court and was argued before the justice is there,
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Speaker 3: there was virtual unanimity that the standard that had been
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Speaker 3: applied by the state was the cour First. For example,
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Speaker 3: Justice Thomas noted that the issue or probable cause is
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Speaker 3: a standard that is normally limited to the criminal context.
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Speaker 3: This was not a criminal investigation, and Justice Robert joined
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Speaker 3: in on that to say, when we talk about probable cause,
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Speaker 3: we talk about probable cause that a crime is occurring.
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Speaker 3: What standard would be used here when we're not talking
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Speaker 3: about a crime, but about a risk of injury to somebody?
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Speaker 3: And Justice Kagan also jumped in, saying that there is
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Speaker 3: a full body of case law out there describing what
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Speaker 3: probable cause is. It's not a self defining term. It
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Speaker 3: has been raised in many cases, and there is a
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Speaker 3: full explanation in the criminal context of what constitutes probable cause,
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Speaker 3: but this is something entirely different. And the justices all
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Speaker 3: seemed to go back to the Brigham City versus Stewart
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Speaker 3: case from two thousand and six to say that the
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Speaker 3: standard of objectively reasonable basis for believing that somebody needs
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Speaker 3: emergency help. Is this standard that should apply here, and
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Speaker 3: Justice Alito and Justice Brown agreed, which doesn't happen very often.
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Speaker 3: They both push back on the contention here of the
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Speaker 3: defense lawyer that this was an unreasonable act by police.
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Speaker 3: Justice Alito went so far as to say, if the
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Speaker 3: police couldnot enter the house based on the facts that
10:21
Speaker 3: they knew in this case, then I don't know when
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Speaker 3: police are ever able to go into a house to
10:26
Speaker 3: prevent something from committing suicide. The concern here is that
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Speaker 3: if there is a legal standard of probable cause in
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Speaker 3: order to go in under these emergency situations, that police
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Speaker 3: officers may hesitate to go into a house when somebody's
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Speaker 3: life is at risk, And they seem to weigh more
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Speaker 3: in favor of protecting the life of an individual and
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Speaker 3: allowing police officers more latitude to go in under these
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Speaker 3: circumstances than they were about the privacy concerns of entering
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Speaker 3: a house without a warrant.
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Speaker 2: So do you think that the justice is will just
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Speaker 2: announce a standard and that will be the end of
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Speaker 2: the case.
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Speaker 3: If the Supreme Court decides to uphold the lower court,
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Speaker 3: then there was some discussion about what comes next.
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Speaker 1: In other words, there were.
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Speaker 3: Some justices who said that they should simply rule that
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Speaker 3: the lower court was correct and that the standard of
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Speaker 3: objectively reasonable was properly applied, and that in this case,
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Speaker 3: clearly the facts warranted the police entering the home. Justice
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Speaker 3: Soto Manor and Justice Thomas, on the other hand, argued
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Speaker 3: that it's the normal practice of the court if they're
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Speaker 3: not certain about a standard and state a new standard,
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Speaker 3: then it should be sent back to the Montana Supreme
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Speaker 3: Court to determine whether, based on these facts, that objectively
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Speaker 3: reasonable standard had in fact been satisfied. Justice Alito expressed
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Speaker 3: some concern that in doing that it might suggest to
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Speaker 3: the lower court that this was in some way a
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Speaker 3: close call, and could, he argued, have some kind of
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Speaker 3: a killing effect on police when they're trying to determine
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Speaker 3: whether to enter a house to prevent somebody from committing suicide.
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Speaker 2: And the Supreme Court is usually protective of the expectation
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Speaker 2: of privacy in one's own home. And we should point
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Speaker 2: out here that some civil rights and privacy groups did
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Speaker 2: line up behind the defendant in this case.
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Speaker 3: Mister Case's attorney reminded the justices that police had entered
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Speaker 3: mister Case's home without permission, without a warrant, or without
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Speaker 3: even probable cause, and ended up shooting him in his
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Speaker 3: own home. He argued that the reasonablenst standard that the
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Speaker 3: state was suggesting was so vague as to invite abuse
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Speaker 3: and confusion by law enforcement.
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Speaker 2: This is one case this term where it appears you
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Speaker 2: never know, but it appears that we know how it's
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Speaker 2: going to turn out. But we shall see. Thanks for
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Speaker 2: joining me, Bob. That's former federal prosecutor Robert Mintz of
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Speaker 2: Macarter and English. Coming up next, the Supreme Court appears
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Speaker 2: likely to invalidate Colorado's ban on con perversion therapy for miners.
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Speaker 2: I'm June Grosso and you're listening to Bloomberg.
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Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
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Speaker 2: You're listening to a special holiday edition of the Bloomberg
13:16
Speaker 2: Law Show. We're looking at several cases before the Supreme Court.
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Speaker 2: Colorado Solicitor General Shannon Stevenson defended the state's ban on
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Speaker 2: conversion therapy for miners at the Supreme Court. She argued
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Speaker 2: that the Constitution allows states to protect patients from harmful,
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Speaker 2: discredited treatments even if a regulation incidentally affects speech.
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Speaker 8: A healthcare provider cannot be free to violate the standard
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Speaker 8: of care just because they are using words, and a
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Speaker 8: state cannot be required to let its vulnerable young people
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Speaker 8: waste their time and money on an ineffective, harmful treatment
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Speaker 8: just because that treatment is delivered through words.
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Speaker 2: An evangelical Christian therapist is challenging the law, saying it
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Speaker 2: violates her free speech rights, and the court's conservative justices
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Speaker 2: appeared to agree with her, questioning the constitutionality of the law.
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Speaker 2: Here are Chief Justice John Roberts and Justice Samuel Alito.
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Speaker 9: In other words, just because they're engaged in conduct doesn't
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Speaker 9: mean that their words aren't protected.
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Speaker 5: Looks like blatant viewpoint discrimination.
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Speaker 2: Liberal Justices Sonya Sotomayor and Katanji Brown Jackson were the
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Speaker 2: only justices who addressed the harms of conversion therapy that
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Speaker 2: every major medical association warns about.
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Speaker 10: There are studies that say that this advice does harm
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Speaker 10: the people emotionally and physically.
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Speaker 2: And Justice Jackson questioned why the Colorado law should be
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Speaker 2: struck down when in June the court upheld a different
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Speaker 2: measure from Tennessee that bans transition related treatments for transgender
14:59
Speaker 2: care kids.
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Speaker 11: The regulations work in basically the same way, and the
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Speaker 11: question of scrutiny applies in both contexts, so it just
15:08
Speaker 11: seems odd to me that we might have a different
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Speaker 11: result here.
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Speaker 2: My guest is First Amendment expert Caroline Mala Corbin, a
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Speaker 2: professor at the University of Miami Law School. Caroline, will
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Speaker 2: you explain conversion therapy and Colorado's law banning it.
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Speaker 12: As about half the states in the country have done.
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Speaker 12: Colorado bans something that has been called gay conversion therapy,
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Speaker 12: and it's the idea of trying to convince someone who
15:37
Speaker 12: is gay that they're not actually gay, or trying to
15:40
Speaker 12: convince someone who is trans that they're not actually trans.
15:44
Speaker 12: And this approach to gay and trans people has been
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Speaker 12: proven to be very delictorious for their mental well being,
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Speaker 12: and so states have forbidden it. They have made it
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Speaker 12: illegal for license medical professionals to provide this as part
16:04
Speaker 12: of their practice of medicine. So to be very clear,
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Speaker 12: it doesn't ban clergy from talking to people about sexual
16:12
Speaker 12: orientation or gender identity, and it doesn't even ban the
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Speaker 12: therapists from talking about it in their own free time.
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Speaker 12: But if they are in the process of providing health
16:24
Speaker 12: care services that they have been licensed to provide, they're
16:29
Speaker 12: not allowed to try and convince gay people that they're
16:32
Speaker 12: not gay, or trans people that they're not trans. That's
16:36
Speaker 12: the law, and.
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Speaker 2: What's the fundamental issue in the case.
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Speaker 12: So you have this law. It says, if you're licensed
16:43
Speaker 12: by the state, the state does not allow you to
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Speaker 12: do things that are contrary to the standard of care,
16:50
Speaker 12: and so you cannot provide conversion therapy. And we have
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Speaker 12: this white Christian woman who argues that the ban forbids
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Speaker 12: her from providing the type of therapy that she wants
17:03
Speaker 12: to practice. She gets help from Alliance to Friending Freedom.
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Speaker 12: And so the question before the court is does this
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Speaker 12: ban on this medical therapy violate the licensed practitioners free
17:17
Speaker 12: speech rights. And so the question before the court is
17:21
Speaker 12: does this ban on this medical therapy violate the licensed
17:27
Speaker 12: practitioners free speech rights? And the legal question that makes
17:33
Speaker 12: all the difference is whether providing conversion therapy is speech
17:40
Speaker 12: or whether it's conduct. Because if it's speech, then it
17:44
Speaker 12: implicates the free speech clause. In fact, it becomes presumptively unconstitutional. If,
17:50
Speaker 12: on the other hand, it's considered conduct, then it doesn't
17:55
Speaker 12: trigger the free speech clause and the government is likely
17:58
Speaker 12: to be allowed to regulate it. So the million dollar
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Speaker 12: constitutional question is how should this practice of conversion therapy
18:08
Speaker 12: get characterize? Is it speech or is it conduct? Now,
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Speaker 12: I just want to point out that the speech in
18:16
Speaker 12: the colloquial sense doesn't always match speech in the constitutional sense.
18:21
Speaker 12: So let me give you a couple of examples when
18:24
Speaker 12: speech is not actually speech, which seems counterintuitive. And yet
18:30
Speaker 12: if for example, you told national security secrets to a
18:36
Speaker 12: foreign enemy, that's speech, but that it wouldn't be treated
18:40
Speaker 12: as speech. It would be treated as the conduct of treason.
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Speaker 12: It's not protected by the free speech cause. Or for example,
18:48
Speaker 12: a sign on a restaurant that said we do not
18:51
Speaker 12: hire fill in the blank, we do not hire black
18:54
Speaker 12: people or Latino people or Asian people. That's words, but
18:58
Speaker 12: that would be considered speech. It would be considered the
19:02
Speaker 12: act of discrimination. And so while it may seem really
19:06
Speaker 12: obvious on its face, well this is words and therefore
19:10
Speaker 12: it's speech, it's not quite as clear cut as the
19:14
Speaker 12: Supreme Court is going to probably conclude.
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Speaker 2: It seems like there is almost universal agreement among those
19:22
Speaker 2: who listen to the oral arguments that the Christian counselor
19:27
Speaker 2: is going to win here.
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Speaker 12: I mean, clearly, whenever you have a white conservative Christian
19:35
Speaker 12: arguing before the Supreme Court, they're going to win, especially
19:38
Speaker 12: if the only thing that's stake, and I say only
19:41
Speaker 12: from the court's perspective is LGBTQ rights. They just don't care, right, So,
19:46
Speaker 12: I think it was a foregone conclusion, apart from any
19:50
Speaker 12: of the legal principles, that the white Christian woman was
19:54
Speaker 12: going to win. You know, I never used to predict
19:56
Speaker 12: the outcome of Supreme Court cases, but it seems the
19:59
Speaker 12: pattern is so clear these days that I think one
20:03
Speaker 12: could say with a certain degree of confidence that she's
20:05
Speaker 12: going to win. And they're basically going to say this
20:09
Speaker 12: is speech, and therefore it is presumptively unconstitutional, and only
20:15
Speaker 12: if the government has a super compelling justification for its law,
20:20
Speaker 12: and the law was the only way to accomplish its goals,
20:24
Speaker 12: it's not going to win. In other words, it's going
20:27
Speaker 12: to have to pass what is known as strict scrutiny,
20:29
Speaker 12: and that is very hard to do.
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Speaker 2: In the speech context, it seemed like most of the
20:33
Speaker 2: discussion was about what standard should be applied here.
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Speaker 12: Well, that's because if it is considered speech, then the
20:42
Speaker 12: standard is going to be strict scrutiny, and if it
20:45
Speaker 12: is not speech, then it's only going to be rational
20:49
Speaker 12: basis scrutiny. So what level of scrutiny a court must
20:53
Speaker 12: give to this law, how hard it looks at it,
20:57
Speaker 12: questions it, The level of evidence the government needs to
21:02
Speaker 12: provide will depend on whether it is speech or conduct,
21:06
Speaker 12: because again, if it is speech, then it implicates the
21:10
Speaker 12: free speech clause.
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Speaker 2: Is this a novel issue coming to the court? Have
21:15
Speaker 2: they decided any similar cases?
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Speaker 12: The Supreme Court is not deciding this against a blank slate.
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Speaker 12: They have already considered the question of medical treatment and
21:28
Speaker 12: speech conduct. But in the abortion context. So I want
21:32
Speaker 12: to highlight that many states who are hostile to abortion.
21:36
Speaker 12: One of the things that they require their abortion providers
21:39
Speaker 12: to do is to give women certain information about abortion. So,
21:45
Speaker 12: for example, you have to let women know that adoption
21:49
Speaker 12: is an option, or that fathers have to pay child support.
21:53
Speaker 12: Other states have held that women have to be told
21:56
Speaker 12: all the harms that may result from abortion, some of
21:59
Speaker 12: which are not even medically accurate. But the point I
22:02
Speaker 12: want to make here is that doctors challenge this regulation
22:06
Speaker 12: on speech grounds and argued, the government is forcing us
22:10
Speaker 12: to say things that are contrary to what we believe
22:14
Speaker 12: is appropriate and correct. And you might think, well, these
22:19
Speaker 12: are words, and they're being forced to articulate a particular
22:23
Speaker 12: viewpoint on things, for example, don't have an abortion, you know,
22:28
Speaker 12: adopt your child out instead. That it too, should be
22:31
Speaker 12: considered a regulation of speech that sort of compels a viewpoint.
22:36
Speaker 12: It's a viewpoint based restriction and therefore should trigger strict
22:40
Speaker 12: scrutiny and be presumptively unconstitutional. But that is not what
22:44
Speaker 12: the Supreme Court did. What the Supreme Court said is
22:48
Speaker 12: that these laws that compel doctors to speak against their
22:52
Speaker 12: will and say things that they don't want to say.
22:55
Speaker 12: The Supreme Court helped that is not a regulation of speech,
23:00
Speaker 12: that is actually a regulation of the medical profession that
23:04
Speaker 12: only incidentally affects speech. So they're designing this case against
23:11
Speaker 12: a backdrop of the Supreme Court already having held in
23:16
Speaker 12: a different context that speech that is connected to the
23:20
Speaker 12: provision of medical treatment is not necessarily going to be
23:25
Speaker 12: treated like speech. And so you know, oh, it just
23:29
Speaker 12: so happens, right that if you're challenging something that's anti abortion,
23:33
Speaker 12: it's not speech, but if you're challenging something that's pro LGBT,
23:39
Speaker 12: it is speech.
23:40
Speaker 2: The Supreme Court has been steadily rolling back protections for
23:44
Speaker 2: gay and transgender people in recent terms. The last time
23:48
Speaker 2: I can think of that LGBTQ writs one at the
23:53
Speaker 2: Supreme Court was the boss Stock case in twenty twenty.
23:57
Speaker 2: Is that the last time.
23:58
Speaker 12: I think so, and I think they have really undermined
24:02
Speaker 12: their own credibility by so aggressively promoting a particular ideology,
24:12
Speaker 12: and to do so at the expense of a marginalized
24:16
Speaker 12: community is not to their honor. And let's be clear,
24:20
Speaker 12: they get to pick and choose their cases. There was
24:24
Speaker 12: nothing that require them to decide this case. I think,
24:29
Speaker 12: in addition to its long standing attack on the LGB community.
24:35
Speaker 12: I think we also are seeing here a real disparagement
24:41
Speaker 12: of expertise, which we also saw in Scremtti, because to
24:46
Speaker 12: be clear, there is a consensus in the medical community
24:51
Speaker 12: that this therapy is really harmful, and yet they did
24:55
Speaker 12: not seem to accept that. Instead, they kept pushing back
25:00
Speaker 12: against this idea that the experts knew what they were
25:04
Speaker 12: talking about, and certainly Alliance Defending Freedom is helping them
25:09
Speaker 12: by producing all kinds of questionable claims about the reliability
25:15
Speaker 12: of the science underlying the medical consensus. And to be sure,
25:21
Speaker 12: the medical community has made errors in the past, but
25:24
Speaker 12: if we have to rely on something, you know, better
25:28
Speaker 12: to rely on medical experts and the weight of the
25:33
Speaker 12: medical community than a right wing political group.
25:38
Speaker 2: And the decision here will implicate similar bands on conversion
25:42
Speaker 2: therapy in twenty six other states. Thanks so much, Caroline.
25:47
Speaker 2: That's Professor Caroline Malacorbin of the University of Miami Law School.
25:51
Speaker 2: Coming up next, When can a criminal defense attorney be
25:55
Speaker 2: barred from talking to his client about his testimony? I'm
25:58
Speaker 2: June Grosso and you're listening to Bloomberg.
26:03
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
26:08
Speaker 2: Thanks for listening to a special holiday edition of Bloomberg
26:12
Speaker 2: Law as we focus on cases before the Supreme Court.
26:16
Speaker 2: It's the most difficult decision a criminal defendant has to
26:20
Speaker 2: make a trial, whether or not to take the stand.
26:23
Speaker 2: And when a defendant decides to take the risk of testifying,
26:27
Speaker 2: what role does his attorney play. David Villarreal took the
26:31
Speaker 2: stand during his trial in twenty eighteen for murdering his boyfriend,
26:36
Speaker 2: but when there was an overnight break in his testimony,
26:39
Speaker 2: the judge barred villar Rial's attorney from discussing his testimony
26:44
Speaker 2: with him. He was convicted, and in his appeal to
26:47
Speaker 2: the Supreme Court, Villarial argues that the judge's order denied
26:52
Speaker 2: him effective assistance of counsel in violation of the sixth Amendment.
26:56
Speaker 2: During the oral arguments, the justice's question just what a
27:00
Speaker 2: trial lawyer could talk to his client about during an
27:03
Speaker 2: overnight break in his testimony without crossing over into coaching
27:08
Speaker 2: the client's testimony. Chief Justice John Roberts posed a hypothetical
27:13
Speaker 2: to the lawyer for Texas about a defendant asking his
27:16
Speaker 2: attorney whether he should stop testifying about fred when he
27:20
Speaker 2: got back on the stand.
27:22
Speaker 9: And I notice every time I do that, you know,
27:25
Speaker 9: Juring number eight gets a big frown and shakes his head.
27:28
Speaker 9: He doesn't look to me like he likes the idea
27:30
Speaker 9: of talking about Fred at all. So I think that's
27:33
Speaker 9: a bad idea. Now, talking about Fred was your idea?
27:37
Speaker 1: Do you still think it's.
27:38
Speaker 7: A good idea?
27:39
Speaker 9: Can the lawyer respond to that question?
27:43
Speaker 7: No, they you would have to tell them I'm mom
27:45
Speaker 7: to a core order not to out to answer.
27:47
Speaker 9: So at that point he tells the defendant who's facing
27:49
Speaker 9: a capital sentence, I'm not going.
27:51
Speaker 4: To tell you.
27:51
Speaker 2: And Justice Elaina Kagan wanted to know about a lawyer
27:55
Speaker 2: giving his client some tips on his performance on the stand.
27:59
Speaker 13: Do you think that counsel can say, listen, I've been
28:03
Speaker 13: noticing that you've been mumbling, and you're also not making
28:08
Speaker 13: eye contact with the questioner, and it would just be
28:12
Speaker 13: a good idea if you'd stopped mumbling and made eye contact.
28:16
Speaker 13: Can the lawyer do that in an overnight recess?
28:19
Speaker 2: The appeals courts are split on whether so called non
28:23
Speaker 2: conferral orders during overnight trial recesses are constitutional. Joining Me
28:29
Speaker 2: is former Manhattan prosecutor and criminal defense attorney. Paul Callan
28:33
Speaker 2: of counsel at Edelman and Edelman. Paul tell us about
28:37
Speaker 2: the facts here.
28:38
Speaker 4: The defendant, David Villarreal, was a meth addict allegedly who
28:43
Speaker 4: stabbed his boyfriend to death, and he goes to trial,
28:46
Speaker 4: and something happened in that trial, and it's something that's
28:50
Speaker 4: very common in the trial of civil and criminal cases,
28:53
Speaker 4: and that is he was on the witness stand testifying
28:57
Speaker 4: and the judge decided to break for the day. It
29:00
Speaker 4: was about one o'clock in the afternoon, and the judge
29:04
Speaker 4: gave an instruction which suggested that the defense attorney should
29:08
Speaker 4: not discuss testimony overnight with his clients because he was
29:13
Speaker 4: on the witness stand. And later on he's convicted, sentenced
29:17
Speaker 4: to sixty years in prison, and now he's seeking to
29:20
Speaker 4: reverse the case, saying that instruction impeded his right to
29:23
Speaker 4: consult with counsel, pursuing to the sixth Amendment.
29:27
Speaker 2: So there was a lot of talk during the oral
29:29
Speaker 2: arguments about coaching your client. Is there a clear line
29:33
Speaker 2: between what's permissible and what's impermissible when coaching a client
29:39
Speaker 2: or preparing a client to testify.
29:42
Speaker 4: Well, there's a line across and we call it subornation
29:45
Speaker 4: of perjury if a lawyer goes too far in giving
29:49
Speaker 4: advice to his client about how he should shape his testimony.
29:53
Speaker 4: And so lawyers always have to deal with this situation
29:57
Speaker 4: that they can't give advice that would constantly subornation of perjury.
30:01
Speaker 4: Lawyers do, and it's their job to give a client
30:04
Speaker 4: advice though, about how to testify and a witness stand,
30:08
Speaker 4: how to conduct themself on the witness stand, how to
30:10
Speaker 4: reactive as an objection made in court, all kinds of
30:14
Speaker 4: technical aspects of testimony like that. Clearly lawyers are allowed
30:18
Speaker 4: to give that kind of advice. But this is a
30:20
Speaker 4: situation that comes up all the time in both civil
30:22
Speaker 4: and criminal cases. When there's a recess in the case,
30:25
Speaker 4: the client wants to talk to the lawyer how am
30:27
Speaker 4: I doing? Am I doing okay on the witness stand?
30:30
Speaker 4: And the lawyer wants to encourage them and say, yes, yes,
30:33
Speaker 4: you're doing great, you know, or no, that was a
30:36
Speaker 4: stupid answer you gave, you know, try to listen to
30:39
Speaker 4: the questions that are being asked. So there are a
30:41
Speaker 4: variety of ways that lawyers approach this thing. So the
30:45
Speaker 4: courts really have gone back and forth on it. There
30:48
Speaker 4: are some court decisions saying that during the course of testimony,
30:52
Speaker 4: if there's a brief recess fifteen twenty minute recess, you
30:56
Speaker 4: can talk to your client, but you shouldn't discuss testimony
30:59
Speaker 4: during that time period. When there's a long adjournment like overnight,
31:03
Speaker 4: then it gets really tricky because really most lawyers think
31:06
Speaker 4: they shouldn't be discussing testimony with the client, but there
31:10
Speaker 4: may be other things that have to be discussed. Should
31:12
Speaker 4: I recommend a plead because the testimony is going so badly?
31:16
Speaker 4: Should I tell the witness that if he's going to
31:19
Speaker 4: stick with this kind of a story, we need another witness.
31:22
Speaker 4: You know, maybe he's got a friend who was refusing
31:24
Speaker 4: to testify, but now you say, you know, he's got
31:26
Speaker 4: to come in and testify given the way your testimony
31:28
Speaker 4: is going. So there's sort of an interreaction between testimony
31:32
Speaker 4: and even testimony that you're not trying to shape, and
31:36
Speaker 4: how it affects other aspects of the case as the
31:39
Speaker 4: case proceeds. So this is a really tricky question for lawyers,
31:43
Speaker 4: and this will be a closely watched case.
31:45
Speaker 2: Some of the justices seem to be leaning toward a
31:48
Speaker 2: type of limited instruction where the lawyer is prohibited from
31:53
Speaker 2: directly discussing the testimony with the client during an overnight break,
31:58
Speaker 2: but is allowed to discuss broader trial strategies and issues
32:02
Speaker 2: that relate to testimony. And Villa Reale's attorney argued that
32:07
Speaker 2: that rule is unworkable in the real world, and just
32:11
Speaker 2: as Sonya Sotmayor gave an example of a lawyer suggesting
32:15
Speaker 2: that a client take a plea in the middle of
32:17
Speaker 2: his testimony, that showed why it's unworkable.
32:21
Speaker 10: I find it impossible for a lawyer to say I
32:26
Speaker 10: think you should consider a plea bargain now, and that
32:29
Speaker 10: the defendant is not going to say, but why, And
32:33
Speaker 10: the why has to be my considered judgment that gets
32:36
Speaker 10: me from here to the corner and back with nobody
32:41
Speaker 10: paying me. Okay, you need to say something. But model
32:46
Speaker 10: rule says a lawyer shall explain a matter to the
32:49
Speaker 10: extent reasonably necessary to make an informed decision.
32:54
Speaker 2: I mean it's very hard to draw a line in
32:57
Speaker 2: these circumstances.
33:00
Speaker 4: Yes, Villaryal's lawyer made a very compelling argument in that regard,
33:03
Speaker 4: because so much of the client's testimony. I mean, if
33:07
Speaker 4: you put a defendant on the witness stand in a
33:09
Speaker 4: criminal case. His testimony is now the key evidence of
33:13
Speaker 4: the entire case, and if it triggers problems, that may
33:17
Speaker 4: cause you as a lawyer to have to go out
33:19
Speaker 4: and get another witness or maybe bring in some kind
33:23
Speaker 4: of an expert, because he's raised something about the impossibility
33:26
Speaker 4: of how a bullet was fired or was aimed when
33:29
Speaker 4: the murder's shot was fired, or a stab wound it
33:32
Speaker 4: would be in this case. Yeah, the testimony interacts, from
33:35
Speaker 4: the legal standpoint, with all of the evidence in the case.
33:38
Speaker 4: So you restrict the lawyer's ability to talk to the client.
33:42
Speaker 4: You can't just keep it down to the testimony alone.
33:45
Speaker 4: Everything interacts with everything else. That's what build in the
33:48
Speaker 4: way of his lawyers are arguing.
33:50
Speaker 2: Justice Elena Kaig and ask this of Texas's lawyer. Do
33:54
Speaker 2: you think that counsel can say, listen, I've been noticing
33:57
Speaker 2: that you've been mumbling, and you're also not making eye
34:00
Speaker 2: contact with the questioner, and it would just be a
34:03
Speaker 2: good idea if you'd stop mumbling and made eye contact.
34:07
Speaker 2: Can the lawyer do that in an overnight recess? Texas's
34:11
Speaker 2: attorney said no, I would consider that to be coaching
34:14
Speaker 2: their testimony as far as how you present yourself to
34:17
Speaker 2: the jury. Of course, he's defending the conviction for Texas,
34:21
Speaker 2: so he's coming at the question from a different angle.
34:24
Speaker 2: But do you think that would be coaching.
34:27
Speaker 4: Well, whether it's coaching or not, I don't know. It
34:30
Speaker 4: probably is coaching. But that kind of coaching is exactly
34:33
Speaker 4: what you get hired to do as a lawyer, to
34:35
Speaker 4: school your client in how he can present his truthful
34:39
Speaker 4: testimony in the best way possible to the jury. And
34:43
Speaker 4: I think most lawyers view this situation where a client
34:48
Speaker 4: is on the witness stand that they will not often
34:51
Speaker 4: hamper with the content of the testimony in their discussions
34:55
Speaker 4: with the client, but they may say, listen, stop looking down.
34:59
Speaker 4: It's making you look guilty. Look at a guy who's
35:02
Speaker 4: asking you the question. And it's okay to glance over
35:05
Speaker 4: at the jurors from time to time with your head up.
35:07
Speaker 4: And I mean, this just has to do with presentation
35:11
Speaker 4: of the testimony to the jury as opposed to the
35:14
Speaker 4: truth or falsity of the testimony. And I think that's
35:16
Speaker 4: perfectly proper that kind of instruction to a client during testimony.
35:21
Speaker 2: Of course, you can never tell for sure from oral
35:24
Speaker 2: arguments how the justices will rule. But it seemed to
35:27
Speaker 2: me that the defendant didn't have five votes, that the
35:32
Speaker 2: majority of the justices were skeptical that not being able
35:37
Speaker 2: to talk to his counsel about his testimony during the
35:41
Speaker 2: overnight break violated his constitutional rights.
35:44
Speaker 4: Well, I'll tell you. And my suspicion is maybe they
35:48
Speaker 4: just want to stay away from the whole thing, because
35:50
Speaker 4: I suspect that the truth of the matter is there's
35:53
Speaker 4: nobody in that room at night when the lawyer is
35:56
Speaker 4: discussing the testimony with the client, and rule is a
36:00
Speaker 4: really hard rule to enforce. I suppose you might have
36:04
Speaker 4: a lot more appeals in cases from defendants who would
36:07
Speaker 4: say I was on the stand and I needed advice
36:11
Speaker 4: and the lawyer refused to talk to me, and that's
36:14
Speaker 4: why I've been convicted, you know what Philip Reality is saying.
36:18
Speaker 4: So it's a touchy subject and it'll be interesting to
36:21
Speaker 4: see how the court rules on this thing. Trial lawyers
36:23
Speaker 4: across the country will be watching very very carefully because
36:27
Speaker 4: there are lots of discuse. It happens to the civil
36:29
Speaker 4: cases too, during depositions. You know, you have a civil
36:32
Speaker 4: case and the guys being deposed, and then they wanted
36:36
Speaker 4: to take a break, and the lawyer says, well, don't
36:38
Speaker 4: talk to him during the break. And the lawyer says, well,
36:40
Speaker 4: you have no right to restrict what I can say
36:42
Speaker 4: to my client during the break. And I've seen fights
36:44
Speaker 4: among lawyers, oral arguments among lawyers at depositions about this
36:48
Speaker 4: very subject. So this one will spill over into civil
36:51
Speaker 4: practice as well. I think if they make a definitive
36:54
Speaker 4: ruling on the issue, is.
36:56
Speaker 2: There an ethical rule that you shouldn't talk to your
36:58
Speaker 2: client during a break into testimony.
37:01
Speaker 4: There are no ethical rules about it, other than, of course,
37:05
Speaker 4: a lawyer cannot suborn perjury. So if you're giving the
37:09
Speaker 4: client advice, you know he's was serving, say self defense
37:13
Speaker 4: in a case, and he tells you a story in
37:16
Speaker 4: which he's not under threat from the person he killed
37:19
Speaker 4: at all, and you say to him, well, you know
37:21
Speaker 4: it would help if you thought he was trying to
37:24
Speaker 4: strangle you when you pulled out the knife and started
37:26
Speaker 4: stabbing him, Well, that would be unethical. You're subborting perjury.
37:30
Speaker 4: You're telling him tell a lie to say that you
37:32
Speaker 4: were in fear of your life, that's why you killed him.
37:35
Speaker 4: So you know, those are the only ethical rules that
37:37
Speaker 4: apply in terms of shaping testimony. By saying be more polite,
37:42
Speaker 4: you know, you're yelling at the prosecutor. Don't do that.
37:45
Speaker 4: It makes you look aggressive and bad. I'm telling you
37:47
Speaker 4: about stylistic questions and advice from the attorney. You know,
37:52
Speaker 4: I think that's something that all lawyers do to a
37:54
Speaker 4: certain extent with clients, and it's probably okay, and matter
37:57
Speaker 4: of fact, the courts may like it, because if you
37:59
Speaker 4: get a long winded client and won't give you a
38:01
Speaker 4: straight answer to a question, a lot of times the
38:03
Speaker 4: judges are quite asked as the client listens carefully to
38:06
Speaker 4: the question and answers it succinctly, as opposed to wandering
38:10
Speaker 4: around and telling all of these lengthy stories, which, by
38:13
Speaker 4: the way, just open up new avenues across examination for
38:16
Speaker 4: the prosecutor. You know, clients testifying is one of the
38:20
Speaker 4: most complex issues of criminal law and always will be.
38:23
Speaker 2: And only Justice Katanji Brown Jackson was a criminal defense
38:27
Speaker 2: lawyer who might have faced some of these problems with
38:30
Speaker 2: a client testifying. She was an assistant public defender in
38:34
Speaker 2: DC Justice Sonya so Tomayor is the only other trial
38:39
Speaker 2: lawyer on the court, and she was a Manhattan District
38:41
Speaker 2: attorney like you, Paul, thanks so much for joining me today.
38:45
Speaker 2: That's Paul Callen, former Manhattan prosecutor and criminal defense attorney.
38:49
Speaker 2: And that's it for this edition of the Bloomberg Law Show.
38:52
Speaker 2: I'm June Grosso.