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SCOTUS on Suits Against Investment Firms & Death Penalty · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio.
0:08
Speaker 2: I think this case is extremely close. I'll just put
0:11
Speaker 2: cards out there on that.
0:14
Speaker 3: And that deduction by Justice Brett Kavanaugh seemed correct because
0:18
Speaker 3: Wednesday's eighty minute oral argument at the Supreme Court didn't
0:23
Speaker 3: give a clear indication about the likely outcome. Wall Street
0:27
Speaker 3: is watching the case over whether to allow investors to
0:31
Speaker 3: broadly use an eighty five year old law to sue
0:34
Speaker 3: funds over their management decisions. A lower court had allowed
0:38
Speaker 3: activist investors led by SABA Capital Master Fund to sue
0:43
Speaker 3: eleven closed end funds, including some affiliated with FS Credit
0:48
Speaker 3: Opportunities and Blackrock. Justice Sonya Soto Mayor pointed to the
0:53
Speaker 3: legislative history of the Investment Company Act to show that
0:56
Speaker 3: Congress intended to allow private rights of action.
1:00
Speaker 4: I know that many of my colleagues don't believe in
1:04
Speaker 4: statutory history, but here we have both a House and
1:08
Speaker 4: a Senate reports accompanying the nineteen eighty amendments to the ICA,
1:14
Speaker 4: and in both the House and the Senate reports, it
1:18
Speaker 4: says that quote private rights of action for violations of
1:23
Speaker 4: the Federal securities Laws are a necessary adjunct to the
1:27
Speaker 4: SEC's and form enforcement efforts.
1:30
Speaker 3: But in recent decades, the Supreme Court has avoided finding
1:34
Speaker 3: private rights of action unless Congress expressly authorizes them in
1:39
Speaker 3: a statute, and conservative Justice Neil Gorsich was critical of
1:44
Speaker 3: allowing so called implied rights of action.
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Speaker 2: Pretty disastrous for our system of government, where the people
1:51
Speaker 2: are supposed to write the laws that govern them, not judges.
1:55
Speaker 3: The Trump administration is backing the mutual funds. I mean,
2:00
Speaker 3: is securities law expert James Park, a professor at UCLA
2:04
Speaker 3: Law School, Jim tell us about this legal fight.
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Speaker 5: Start sort of from the beginning. You have a hedge
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Speaker 5: fund SABA Capital, and one of its strategies is it
2:14
Speaker 5: buys stock in mutual funds, mutual funds that are closed ended,
2:19
Speaker 5: which means that they have stock trading in secondary markets.
2:22
Speaker 5: And the idea on the strategy is you buy a
2:25
Speaker 5: substantial stake and you influence the governance of the fund.
2:29
Speaker 5: You might think that it has poor governance, and then
2:32
Speaker 5: that should increase the price of the stock. That's what
2:35
Speaker 5: activist stock investors typically do, and then you hopefully sell
2:39
Speaker 5: at a profit. And so they did this for a
2:42
Speaker 5: number of mutual funds, and the funds basically tried to
2:46
Speaker 5: take away their right to vote. There was a state
2:49
Speaker 5: law in the state where they were formed which said that,
2:52
Speaker 5: you know, if you pass a resolution, you can take
2:54
Speaker 5: away a shareholder's right to vote unless a majority of
2:58
Speaker 5: the other shareholders basically give it back. And this is,
3:01
Speaker 5: you know, almost a takeover defense sort of thing. It
3:04
Speaker 5: reduces their influence on the company's governance. And so what
3:07
Speaker 5: SABA Capital is arguing is that that violates a law,
3:12
Speaker 5: a federal law called the Investment Company Act, which is
3:14
Speaker 5: passed in nineteen forty, which is meant to regulate mutual funds.
3:19
Speaker 5: The Investment Company Act basically says that shareholders are supposed
3:23
Speaker 5: to have votes proportionate to the number of shares that
3:25
Speaker 5: they own. And so what SABA Capital was arguing is
3:30
Speaker 5: that we have a private right of action to sue
3:33
Speaker 5: and the remedy should be recision, which means basically, we
3:35
Speaker 5: get our money back. And so there's a question as
3:38
Speaker 5: to whether the Investment Company Act authorizes a lawsuit like
3:42
Speaker 5: this because the language does not come out and say
3:46
Speaker 5: in a very straightforward way that you have the right
3:49
Speaker 5: to sue for violations of the Investment Company Act and
3:52
Speaker 5: so the only way you can say they have a
3:54
Speaker 5: right to sue is to say there's something called an
3:56
Speaker 5: implied remedy here, sort of an implicit right to sue
4:00
Speaker 5: that the court can basically say is evident from the law.
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Speaker 3: The Second Circuit Court of Appeals, which handles a lot
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Speaker 3: of these kind of financial cases and is well respected,
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Speaker 3: do it allow a private right of action?
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Speaker 5: They did, They basically did in a different case. And
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Speaker 5: Judge Laval, who is a very prominent respected Second Circuit judge,
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Speaker 5: said that the statute has language that can be read
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Speaker 5: to indicate that Congress intended for private parties to be
4:33
Speaker 5: able to bring suit for recision when there is a
4:36
Speaker 5: violation of the Investment Company Act, And he mainly based
4:41
Speaker 5: his argument on the text. The text of the law says,
4:45
Speaker 5: you know, if you hihilated the Investment Company Act, then
4:49
Speaker 5: the various agreement that you entered into with the mutual
4:53
Speaker 5: fund is unenforceable. It talks about, you know, in certain circumstances,
4:57
Speaker 5: recisions should not be denied a party if the benefit
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Speaker 5: of recision outweighs some of the downsides. So there is
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Speaker 5: language that indicates that Congress might have envisioned these private
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Speaker 5: lawsuits happening, but it's not said in a straightforward way,
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Speaker 5: and I think that's what made the question ambiguous. And
5:17
Speaker 5: in fact, the Third Circuit and a number of other
5:19
Speaker 5: circuits had held the opposite and said that there is
5:23
Speaker 5: not an implied right to sue under the Investment Company Act.
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Speaker 5: And the Supreme Court generally has not favored these implicit rights,
5:31
Speaker 5: which are not straightforward in the text of the statute.
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Speaker 3: And what were the concerns of the justices about allowing
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Speaker 3: a private right of action?
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Speaker 5: There were, you know, a number of concerns, and they
5:43
Speaker 5: mostly focused on the statutory interpretation argument as opposed to
5:48
Speaker 5: broader policy concerns. And you know, I think that they
5:52
Speaker 5: were concerned that the language was not completely straightforward and
5:57
Speaker 5: that there were some really difficult issue of interpreting what
6:01
Speaker 5: the statute meant. Justice Kavanaugh went so far as to
6:04
Speaker 5: say this was a very close case, that there are
6:06
Speaker 5: good arguments on both sides. Some of the more liberal
6:10
Speaker 5: justices pointed to the legislative history, and the legislative history
6:14
Speaker 5: actually indicates that Congress thought that there would be an
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Speaker 5: implied right of action. And there were some reports Senate
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Speaker 5: in house reports which said that the envisioned investors could sue.
6:24
Speaker 5: But a lot of the more conservative justices, as you
6:26
Speaker 5: may know, they don't really like to look at legislative history.
6:30
Speaker 5: They like to look at the text of the statute,
6:32
Speaker 5: and so a lot of the oral argument was puzzling
6:35
Speaker 5: through how we read this language, and that's basically what
6:39
Speaker 5: the argument was mainly about.
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Speaker 3: I thought it was interesting that Justice Sodo Mayor prefaced
6:45
Speaker 3: her remarks about the statutory history by saying, I know
6:49
Speaker 3: many of my colleagues don't believe in statutory history. She
6:53
Speaker 3: also referred to these private lawsuits as being in conjunction
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Speaker 3: with the secs and five enforcement efforts. But if you
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Speaker 3: have private investors bringing their own lawsuits, does that interfere
7:07
Speaker 3: with the SEC's enforcement plans.
7:10
Speaker 5: Definitely. The mutual fund industry has taken the position that
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Speaker 5: the statute is meant to be enforced by the SEC
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Speaker 5: rather than private plaintiffs, and that the SEC can come
7:21
Speaker 5: in if there's a violation of the Investment Company Act
7:24
Speaker 5: and bring various enforcement actions. And you know, I think
7:28
Speaker 5: the response to that is the SEC has limited resources.
7:32
Speaker 5: There are a lot of these mutual funds out there,
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Speaker 5: a lot of potential violations and having private attorney generals
7:38
Speaker 5: who are able to bring these suits maybe a more
7:40
Speaker 5: effective way of enforcing these provisions. That was not really
7:45
Speaker 5: discussed much in the oral argument. I think that argument
7:48
Speaker 5: has fallen a bit out of favor with the more
7:50
Speaker 5: conservative justices. But definitely the mutual fund industry believes that
7:55
Speaker 5: it's really the sec that should be bringing enforcement actions
7:59
Speaker 5: in this space.
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Speaker 3: What about suing in state court rather than federal court.
8:04
Speaker 3: Here's what Justice Kavanaugh said.
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Speaker 2: So it's a federal court state court issue. As I
8:09
Speaker 2: see it, like this is going to happen, It's just
8:11
Speaker 2: going to happen in federal court or state court.
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Speaker 5: There was also a lot of discussion about that possibility
8:18
Speaker 5: that maybe what the statute means is that the contract
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Speaker 5: is unenforceable if there's a violation of the Investment Company Act,
8:27
Speaker 5: and so then there would be litigation in state court
8:31
Speaker 5: about the enforceability of the contract, And so that was
8:34
Speaker 5: seen as a possibility. Have there ever been suits like that,
8:38
Speaker 5: I don't know, and I think there would be a
8:40
Speaker 5: little bit complicated, you know, especially the types of theories
8:45
Speaker 5: that you might want to bring. Federal courts may have
8:48
Speaker 5: a bit of an advantage over state courts in hearing
8:51
Speaker 5: these types of issues, and so it would be a
8:54
Speaker 5: bit awkward to say that these claims would mainly be
8:57
Speaker 5: brought in state court as opposed to federal court if
9:01
Speaker 5: you want to have this be an effective remedy. In
9:03
Speaker 5: my view, the.
9:06
Speaker 3: Supreme Court is considering whether they'll let investors use the
9:09
Speaker 3: nineteen forty Investment Company Act to sue funds over their
9:14
Speaker 3: management decisions. I've been talking to securities law expert James Park,
9:18
Speaker 3: a professor at UCLA Law School. Jim, can you give
9:22
Speaker 3: us a sort of simplistic explanation of the position of
9:26
Speaker 3: each side here on the merits of the case.
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Speaker 5: On one side, the investors might argue, we need some remedy,
9:33
Speaker 5: We need a clear remedy when there are violations, and
9:37
Speaker 5: recision is a pretty powerful remedy under the Investment Company Act,
9:41
Speaker 5: which was meant to regulate mutual funds. On the other hand,
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Speaker 5: I think what the mutual fund industry is worried about
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Speaker 5: is that you're going to get a flood of lawsuits
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Speaker 5: and that that might actually be bad for most investors
9:52
Speaker 5: in the mutual fund because you know, only a few
9:55
Speaker 5: investors might be interested in suing I'm only a few investors,
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Speaker 5: maybe pursuing an activist strategy with the fund, and so
10:04
Speaker 5: the other investors may not be all that interested. And
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Speaker 5: it's costing to defend these lawsuits, and those costs come
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Speaker 5: out of the pockets of the other mutual fund shareholders.
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Speaker 3: It was hard to read the argument, although it did
10:19
Speaker 3: seem like the liberal justices and perhaps the Chief Justice
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Speaker 3: and Justice Kavanaugh might favor allowing the private lawsuits. But
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Speaker 3: what was your take?
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Speaker 6: It's close.
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Speaker 5: I mean, my guess is I actually think that they
10:34
Speaker 5: will find that there is a right of action based
10:37
Speaker 5: upon the text of the statute. I think there is
10:40
Speaker 5: enough in the text of the statute to persuade at
10:44
Speaker 5: least some of the conservative justices that Congress intended for
10:49
Speaker 5: there to be a private right of action for recision.
10:53
Speaker 5: I think the more liberal justices will be persuaded by
10:56
Speaker 5: both the text, the legislative history, and policy consideration. So
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Speaker 5: I think they'll need to get a couple of the
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Speaker 5: Republican justices to decide with them, which I think is
11:06
Speaker 5: very possible. It's not a sure thing, but just my
11:09
Speaker 5: sense of the argument. If I felt like Saba Capital
11:12
Speaker 5: might have had a bit of a better argument in
11:14
Speaker 5: terms of the text on the statutory interpretation issue.
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Speaker 3: This case really doesn't present activists, investors and their motivations
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Speaker 3: in the best light.
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Speaker 5: This is an ongoing debate as to whether or not
11:27
Speaker 5: you think activists are you know, are positive for corporations
11:33
Speaker 5: and mutual funds. And you know, this is interesting because
11:37
Speaker 5: it's an activism in a space where we don't necessarily
11:40
Speaker 5: see a lot of activism. And you know, there's a
11:44
Speaker 5: question as to do we need it for mutual funds.
11:47
Speaker 5: And there's one, you know, one argument that perhaps you know,
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Speaker 5: mutual funds may have weak corporate governance. The boards are
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Speaker 5: controlled by the managers of the fund and so they
12:00
Speaker 5: don't push back enough on the fund managers. There's a
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Speaker 5: view that, you know, we need to scrutinize the governance
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Speaker 5: of the mutual funds. On the other hand, there's another
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Speaker 5: view that some scholars have expressed that you know, if
12:13
Speaker 5: you're unhappy with the governance of mutual funds, you can
12:16
Speaker 5: sell your shares, you can exit very easily and find
12:19
Speaker 5: another mutual fund, and that would create some pressure on funds.
12:22
Speaker 5: So maybe litigation is not all that necessary. And so
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Speaker 5: I think with shareholder litigation with respect to mutual funds.
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Speaker 5: You know, we don't have kind of the you know,
12:33
Speaker 5: iconic cases that you did with you know, Rule ten
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Speaker 5: B five and suits against public companies like we don't
12:38
Speaker 5: have the en runs and World comms where there was
12:41
Speaker 5: a demonstrated need for shareholders to be able to sue
12:45
Speaker 5: and bring an action to recover funds. You know, haven't
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Speaker 5: seen as many examples of that in the mutual fund space.
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Speaker 5: That doesn't mean that there aren't examples of egregiously bad
12:56
Speaker 5: corporate governance, but I think there's an argument that maybe
12:59
Speaker 5: we don't need as much as scrutiny of the governance
13:02
Speaker 5: of mutual funds because it's a very competitive industry, right
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Speaker 5: There are thousands of these funds that you can choose,
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Speaker 5: and you know, if one of them is being mismanaged,
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Speaker 5: you can shift your funds to another one.
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Speaker 3: And do you think that it's the correct decision to
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Speaker 3: allow the private investors to.
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Speaker 5: Sue as a policy matter, I think the risk that
13:20
Speaker 5: it's going to lead to a flood of lawsuits may
13:22
Speaker 5: be low. We'll have to see, though. And my colleague
13:25
Speaker 5: at UCLA for non Restreppo actually has a study that
13:28
Speaker 5: he just completed that looked at what happened after the
13:31
Speaker 5: Second Circuit allowed these lawsuits, and he didn't find a
13:34
Speaker 5: flood of cases, and he didn't find a big impact
13:37
Speaker 5: on the mutual fund industry. These are preliminary results, he
13:40
Speaker 5: tells me, So he may find something different as he
13:43
Speaker 5: delves into the data. And his study only, I think,
13:46
Speaker 5: looks at the Second Circuit, So you know, maybe a
13:48
Speaker 5: Supreme Court ruling would have a greater impact than the
13:50
Speaker 5: number of suits that have been brought. My sense is that,
13:53
Speaker 5: you know, SABA Capital is a little bit of an
13:55
Speaker 5: outlier in terms of pursuing a strategy like this. Most
14:00
Speaker 5: activist funds are targeting public corporations rather than mutual funds. Now,
14:05
Speaker 5: it might be that if you know you have more
14:07
Speaker 5: rights and more leverage, that more funds may get into
14:10
Speaker 5: this space. But it is a strategy that does require
14:13
Speaker 5: you to make a pretty substantial investment in the mutual
14:17
Speaker 5: funds so that you have significant votes. And it's a
14:20
Speaker 5: little bit different than some of the shareholder lawsuits we
14:23
Speaker 5: see with public companies, which have been criticized because you know,
14:27
Speaker 5: you have plaintiffs who own only a few shares, who
14:29
Speaker 5: have a right to bring a private action represented by
14:33
Speaker 5: an attorney in a class action, and so that might
14:36
Speaker 5: be the reason we see a lot of litigation in
14:39
Speaker 5: the public company space. I don't know if that will
14:42
Speaker 5: necessarily be true with respect to mutual funds. And you know,
14:47
Speaker 5: the other thing to keep in mind is the implied
14:49
Speaker 5: right of action is also just for recision, which means
14:52
Speaker 5: the remedies you get your money back, as opposed to damages.
14:55
Speaker 5: That may also have some impact on the incentives of
14:58
Speaker 5: plaintiffs to bring lot of lawsuits for violations of the
15:02
Speaker 5: investment company ASTs.
15:03
Speaker 3: What's an investor lawsuit without damages? Thanks so much, Jim.
15:07
Speaker 3: That's Professor James Park of UCLA Law School. The Supreme
15:13
Speaker 3: Court decided twenty three years ago that sentencing a mentally
15:17
Speaker 3: disabled person to death violates the Eighth Amendments ban on
15:22
Speaker 3: cruel and unusual punishment, but it left it up to
15:25
Speaker 3: the states to decide how to determine that disability, and
15:29
Speaker 3: this week, the Justice is struggled with whether to allow
15:33
Speaker 3: Alabama to execute a man with low cognitive function who'd
15:37
Speaker 3: gotten varying results on multiple IQ tests. In past decisions,
15:42
Speaker 3: the Court has said that defendants are permitted to offer
15:45
Speaker 3: additional evidence of cognitive impairment if their IQ scores fall
15:51
Speaker 3: below the threshold, and several justices said that Alabama's dependence
15:56
Speaker 3: on the IQ score was too rigid here. This is Katanji,
16:00
Speaker 3: Brown Jackson, Elena Kagan, and Brett Kavanaugh.
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Speaker 1: The district court did here was look not only at
16:08
Speaker 1: the IQ scores holistically, but also other evidence of adaptive functioning.
16:13
Speaker 1: And that's precisely what our case law says that the
16:16
Speaker 1: courts are supposed to do.
16:18
Speaker 6: That's totally within a state court's discretion to say, there
16:22
Speaker 6: are a lot of scores here on the plus seventy
16:24
Speaker 6: side that's despositive for us, as long as they've given
16:29
Speaker 6: a person this is the only requirement that seems to
16:32
Speaker 6: me that comes out of whole. And more, they have
16:35
Speaker 6: to give the person with the with the seventy or
16:39
Speaker 6: minus score the opportunity to come in with adaptive evidence
16:44
Speaker 6: suggesting the opposite.
16:46
Speaker 2: Fall upon Justice Kagan's question, what's the logic or the
16:50
Speaker 2: rationale or the sense behind not having a district court
16:57
Speaker 2: or a trial court or a state court have the
16:59
Speaker 2: ability in those circumstances to go on and look at more.
17:03
Speaker 3: The Eleventh Circuit Court of Appeals had found that Joseph
17:07
Speaker 3: Clinton Smith was intellectually disabled and said its decision was
17:12
Speaker 3: based on a holistic approach that considered Smith's deficits in
17:16
Speaker 3: everyday skills along with the IQ score of seventy two.
17:21
Speaker 3: Alabama is appealing that decision to the Supreme Court. Joining
17:25
Speaker 3: me is an expert in death penalty litigation, Andrea Lyon
17:29
Speaker 3: of the Chicago firm of Lyon in Kerr. She's taken
17:33
Speaker 3: nineteen capital cases through the penalty phase. Andrew tell us
17:38
Speaker 3: about Joseph Smith and the course of his death penalty litigation.
17:43
Speaker 7: Well, mister Smith is intellectually disabled. The question is is
17:47
Speaker 7: whether or not he meets the standard that was drawn
17:51
Speaker 7: up by the United Supreme Court in a case called
17:53
Speaker 7: Atkins versus Virginia quite some time ago at this point,
17:58
Speaker 7: and they just said that someone who was intellectually disabled,
18:02
Speaker 7: which used to be called mental retardation, had a lower
18:06
Speaker 7: level of moral culpability, not lower level of legal culpability.
18:10
Speaker 7: They could still be convicted, but a lower level of
18:13
Speaker 7: moral culpability because of their inability to reason very well.
18:19
Speaker 7: And so the question here is whether or not mister
18:23
Speaker 7: Smith fits into the categories that have been worked out
18:28
Speaker 7: through various cases in the United States Supreme Court. It
18:31
Speaker 7: used to be that it was like, if your IQ
18:33
Speaker 7: was seventy or lower, you fit in the category, and
18:35
Speaker 7: if it was above that you didn't. And that has
18:40
Speaker 7: changed because part of what gets looked at and what
18:44
Speaker 7: psychologists say should be looked at, is adaptive behavior. You
18:49
Speaker 7: know how well the person is adjusted, how well they're functioning.
18:53
Speaker 7: One thing, mister Smith, as I understand it, his IQ
18:57
Speaker 7: was variously seventy two to seventy eight, which which is
19:00
Speaker 7: quite low and puts them in what is called the
19:05
Speaker 7: mildly mentally retarded or mildly intellectual disabled. But when I
19:10
Speaker 7: say mildly, I think it might be helpful to know
19:14
Speaker 7: that someone with an IQ of seventy two functions at
19:17
Speaker 7: the same level as a nine to ten or eleven
19:20
Speaker 7: year old child, and I think that helps put things
19:24
Speaker 7: in perspective. I mean, a child knows that they're not
19:27
Speaker 7: supposed to hurt someone, But if a child does something,
19:32
Speaker 7: we don't hold them to the same standard that we
19:35
Speaker 7: would hold an adult to because we recognize that they
19:39
Speaker 7: are have limitations and that their decision making isn't very
19:43
Speaker 7: good and all of those sorts of things. So mister
19:47
Speaker 7: Smith is functioning at that level, and I think that
19:53
Speaker 7: what the Court is struggling with here is how to
19:57
Speaker 7: define things and how much to get in the weeds themselves.
20:03
Speaker 3: The US Court of Appeals for the Eleventh Circuit, which
20:06
Speaker 3: is one of the more conservative circuits in the country,
20:11
Speaker 3: found that he met the standard, and the Eleventh Circuit
20:15
Speaker 3: said its finding was based on a holistic approach and
20:18
Speaker 3: review of evidence, not just a single low score. So
20:23
Speaker 3: do you think that the justices took this case because
20:25
Speaker 3: they're not happy with that holistic view?
20:29
Speaker 7: I would think not, given the decisions that have been
20:32
Speaker 7: made since Atkins, where the courts are directed to take
20:37
Speaker 7: a look at all of the things that make you
20:39
Speaker 7: qualify someone that way, that this has to have happened
20:42
Speaker 7: or be evident prior to the person reaching their majority.
20:45
Speaker 7: There's a number of things that the American Psychological and
20:49
Speaker 7: the American Psychiatric associations say that you need to look at,
20:53
Speaker 7: and so courts were encouraged to take a holistic approach.
20:57
Speaker 7: It is difficult to know what this Supreme Court will
21:00
Speaker 7: make of that. They are remarkably uninterested in precedent. I
21:06
Speaker 7: think that's the polite way to put it. If they
21:08
Speaker 7: follow precedent, then they will affirm the Eleventh Circuit, which,
21:11
Speaker 7: as you mentioned, is a conservative court. And if a
21:15
Speaker 7: conservative court found it to be the case, it's probably
21:19
Speaker 7: the case because they don't necessarily want to help people
21:22
Speaker 7: that are on death row. But it's very difficult to
21:25
Speaker 7: know whether the Court will follow its own precedent or not,
21:30
Speaker 7: and what some of the justices who say that they
21:34
Speaker 7: are originalists, which is another whole conversation we can have
21:37
Speaker 7: another time. But you know they're going to say, well,
21:39
Speaker 7: we didn't do that in you know, seventeen seventy six.
21:41
Speaker 7: We didn't care what the IQ was, you know, but
21:44
Speaker 7: we also chopped off the hands of thieves and hung
21:47
Speaker 7: people for stealing bread. So the question is, you know
21:50
Speaker 7: whether or not what the Supreme Court has identified as
21:53
Speaker 7: evolving standards of decency that caused the decision in Atkins
21:58
Speaker 7: and its progeny should still apply. I imagine that there are
22:03
Speaker 7: members of the Court who think, not.
22:06
Speaker 3: What does Alabama want just a strict, rigid let's look
22:10
Speaker 3: at the IQ scores and stop there.
22:13
Speaker 7: I think they would like more guidance as to what
22:15
Speaker 7: to look at. But I think there's a pretty clear
22:20
Speaker 7: consensus among courts that do this kinds of reviews, both
22:23
Speaker 7: federal and state, that you have to do a holistic
22:26
Speaker 7: approach that the number alone doesn't tell you enough. First
22:29
Speaker 7: of all, there's margin of error, so somebody with a
22:33
Speaker 7: seventy two IQ could actually have an IQ of sixty seven.
22:36
Speaker 7: So there's that plus or minus to five points. So
22:41
Speaker 7: there's that. But you also have to look and see
22:43
Speaker 7: whether the person has their adaptive behavior takes them out
22:48
Speaker 7: of that protected category. So you could conceivably have someone
22:52
Speaker 7: who has managed, with great teaching or great support to
22:57
Speaker 7: function like a sixteen year year old rather than an
23:01
Speaker 7: eleven year old with all of the things that are
23:04
Speaker 7: wrong with him or her, and a court could find,
23:06
Speaker 7: looking at all of the circumstances, that they are not
23:09
Speaker 7: exempt from the death penalty for that reason. One of
23:12
Speaker 7: the challenges that has been noted by many Supreme Court
23:15
Speaker 7: justices over the years is that it's very very difficult
23:19
Speaker 7: to set standards that are immutable and that coexist with
23:26
Speaker 7: the two main concepts that are often in tension with
23:30
Speaker 7: one another. And one of those concepts is that you
23:34
Speaker 7: need to narrow the class of people who are eligible
23:37
Speaker 7: for the death penalty, so adding an aggravating factor such
23:41
Speaker 7: as killing a police officer in mine of duty something
23:44
Speaker 7: like that. But you also have to have individualized consideration
23:49
Speaker 7: of the defendant, and those things sometimes clash, but that
23:55
Speaker 7: is the nature of the law. Everything is not always
23:59
Speaker 7: one and clear. Some things are. You can give guidelines,
24:05
Speaker 7: but you can't give you know, above this line ax
24:09
Speaker 7: and below that line? Why? Because it does not work
24:12
Speaker 7: with human beings. And the law is, after all about
24:18
Speaker 7: and four fallible human beings.
24:22
Speaker 3: How is the Supreme Court already ruled in this area?
24:26
Speaker 3: Have they said you can use other things besides this
24:31
Speaker 3: rigid IQ cutoff?
24:33
Speaker 7: Yes, they have.
24:35
Speaker 3: So then I'm wondering what the point of taking this
24:37
Speaker 3: case is when it seems to be about do we
24:41
Speaker 3: use a rigid IQ determination or are we looking at
24:45
Speaker 3: it holistically.
24:46
Speaker 7: I don't know why they took it. I don't know
24:50
Speaker 7: if there's some justices who think that they could be
24:53
Speaker 7: more clear than they have been in the previous three cases.
24:56
Speaker 7: I don't know if there's some justices who want to
24:58
Speaker 7: back away from category workly eliminating certain groups of people
25:03
Speaker 7: such as you know, juveniles and those with intellectual disabilities.
25:07
Speaker 7: You know, whether they think that was a mistake and
25:09
Speaker 7: that that should just be presented in mitigation. I suppose
25:13
Speaker 7: there are some justices, and I could guess who they
25:16
Speaker 7: might be who would feel that way, But that's not
25:20
Speaker 7: the law. And the law has been this way for
25:22
Speaker 7: a long time, and people do seem to understand it
25:24
Speaker 7: and seem to be able to apply it. So your
25:27
Speaker 7: question as to why they took the case, I would
25:30
Speaker 7: just be guessing.
25:31
Speaker 3: You've represented so many death penalty defendants. How difficult is
25:36
Speaker 3: it to get a determination of mental disability from the courts?
25:42
Speaker 7: Well, it's not easy. I mean you have to investigate
25:45
Speaker 7: the defendant's life and take a look and see if
25:49
Speaker 7: there are you know, IQ scores from ages ago. And
25:52
Speaker 7: we used to do that in public schools regularly. Now
25:54
Speaker 7: I don't think we do it as much. And you
25:56
Speaker 7: know whether the person has been in you know, education plans,
26:00
Speaker 7: how they've been functioning, because you know, the first part
26:02
Speaker 7: of things is you have to show that this is
26:04
Speaker 7: not something that has happened as a result of a
26:06
Speaker 7: blow to the head or something else later. So you
26:09
Speaker 7: have to dig in and get those records. School records,
26:11
Speaker 7: medical records, everything you possibly can. Then you have to
26:15
Speaker 7: have your client evaluated by a competent mental health professional
26:20
Speaker 7: and you get a report, and then you file emotion
26:23
Speaker 7: to bar the death penalty. Assuming that it comes out
26:26
Speaker 7: with your client has intellectual disabilities, you file a motion
26:29
Speaker 7: to bar the death penlling on that basis. Now, sometimes
26:32
Speaker 7: you end up in a big fight with an evidentiary
26:34
Speaker 7: hearing and a judge makes a determination yes or no.
26:37
Speaker 7: Sometimes the prosecution will take a look at what you
26:40
Speaker 7: have and decide that this person is an Atkins excludible
26:45
Speaker 7: that's how we refer to it in this world, and
26:48
Speaker 7: that there's no reason to contest it and just agree
26:51
Speaker 7: to take the death penalty off the table. So that's
26:54
Speaker 7: basically what happens. It takes time and effort and resources
26:59
Speaker 7: to determine that.
27:00
Speaker 3: Well, thanks so much for joining me today, Andrea. That's
27:03
Speaker 3: Andrea Lyon of Lyon and Kerr. And that's it for
27:06
Speaker 3: this edition of the Bloomberg Law Show. Remember you can
27:08
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27:12
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